LD 
am 

.As 

I SOS. 




LMiii— 







REPORT 



OF THE 



COMMITTEE OF THE OVERSEERS 



HARVARD COLLEGE, 



APPOINTED TO PROCURE A PERFECT COPY OF THE 



( OLLEGE CHARTER, 



) TO LAY THE SAME BEFOKE THE BOARD, ETC. 



WlTtt KXPLANATIONS AND REMARKS RESPECTlXr; THE CONSTRUCTION 
OF THE THIRD CLAUSE OF SAID CHARTER. 



m 



SUBMITTED FEBRUARY 20, 18fi2. 




BOSTON: 
PRINTED BY GEO. G. RAND & AVERY, 

No. 3 CoRNHltL. 

1862. 



REPORT .crri.^. 



OP THE 



COMMITTEE OF THE OVERSEERS 



OP 



HARYARD COLLEGE 



APPOINTED TO PROCURE A PERFECT COPY OF THE 



COLLEGE CHARTER, 



AND TO LAY THE SAME BEFORE THE BOARD, ETC. 



WITH EXPLANATIONS AND REMARKS RESPECTING THE CONSTRUCTION 
OP THE THIRD CLAUSE OF SAID CHARTER. 



SUBMITTED FEBRUARY 20, 1862. 




BOSTON: 
PRINTED BY GEO. C. RAND & AVERY, 

No. 9 CORNHILL. 

1862. 



1^4 

■hi 



N"'' 



In Board op Overseers of Harvard College, 

February 20, 1862. 

Hon. GrEORGE MoREY, in behalf of the Committee of the Overseers 
appointed to procure a perfect copy of the College Charter, &c., &c., 
submitted the accompanying Report, which, at his request, was laid upon 
the table and ordered to be printed. 

Attest : 

NATHANIEL B. SHURTLEFF, 

Secretary. 



Gift 
Edson L. Whitney 

DEC 8- 1938 



^ REPORT. 

CO 



\i: 



o 



In Board of Overseers of Harvard College, 

Febraary 20, 1862. 

The Committee of the Overseers, appointed at the 
stated meeting of the Board, held at Cambridge on the 
21st of June, 1860, to procure an accurate and perfect 
copy of the Charter of Harvard College, and to lay the 
same before this Board, and also to compare said copy 
with what purports to be a copy of said charter, as set 
forth in the first volume of the Kecords of the Over- 
seers, and to ascertain what discrepancies and difier- 
ences, if any, exist between them, and to make such 
explanations and remarks as they should consider 
pertinent, have attended to the duty assigned them, 
and present the following Eeport : — 

In the year 1855, a committee of the Overseers was 
appointed to consider and report on the relative 
powers, duties and responsibilities of the Corporation 
and of the Overseers of Harvard College, which com- 
mittee made a report on the 31st of January, 1856, 
and the same was accepted by this Board. 

In said report it was in substance held and main- 
tained by the said committee, that, from the four pro- 
visions of the third clause of the charter, the President 
and Fellows of Harvard College derived their power 
to make appointments, establish salaries, make removals 
of college officers, and to make orders and by-laws, and 
that the Overseers had the right of approval or disap- 
proval of the orders or votes of the Corporation, by 



which such appointments, allowances, removals, and 
orders and by-laws were made, and that the Overseers 
had this right by virtue of the proviso to said third 
clause ; said committee also maintained that the word 
orders in said proviso had the same meaning as the 
word votes. 

A committee of conference was afterwards appointed 
by the President and Fellows to confer with a like 
committee of the Overseers, and to take into considera- 
tion, and report to said Corporation, the nature and 
extent of the rights and powers claimed hy them, and 
of the corresponding duties and obligations of said 
Corporation. This committee of the President and 
Fellows made a report on the 15th of November, 1856, 
which was accepted by their Board. In said report to 
the President and Fellows, the committee admitted, in 
substance, that the powers of the Corporation, as to 
making appointments, allowances, removals, and orders 
and by-laws, were derived from the third clause of the 
charter, but they denied the right, claimed by the Over- 
seers, of approval or disapproval of the votes of the 
Corporation in relation not only to salaries, but to ap- 
pointments and removals, and insisted that such right 
of the Overseers, conferred upon them by the proviso to 
the third clause, was confined to the votes by which 
the Corporation were authorized to pass orders and by- 
laws by the fourth part or provision of said clause. 
Said committee of the Corporation also maintained that 
the word orders in said proviso did not signify votes, but 
meant the same as the words orders and by-laws. 

The aforesaid report to the Overseers on the 31st of 
January, 1856, will hereinafter be referred to by your 
committee as the report to the Overseers of January, 1856, 



and the said report to the Corporation on the 15th of 
November, 1856, will be hereinafter referred to as the 
report to the Corporation of November, 1856. 

The word orders, unconnected with the word laws, or 
the word by-laws, occurs in one instance only in the act 
of the General Court, found in the records of the Gov- 
ernor and Company of the Massachusetts Bay in New 
England, by which act, adopted at the session which 
commenced May 23, 1650, and commonly called the 
Charter, Harvard College was made a corporation ; and 
a question has been raised, as aforesaid, respecting the 
meaning and force of the word orders, so standing alone. 

For the purpose of determining this question, your 
Committee have examined with care the records of said 
Governor and Company, and the records of the col- 
ony of New Plymouth in New England. They have 
also examined the records of corporations, established 
prior to and since the Ke volution of 1776, including 
therein those of the Corporation of Harvard College, 
and of towns, which are quasi corporations, in which 
records are set forth the doings of said corporations and 
towns, that occurred during our colonial and provincial 
history, and since the adoption of the Constitution of 
the Commonwealth of Massachusetts. 

Like the African, East India, and other old English 
companies, the Governor and Company of the Massa- 
chusetts Bay in New England were incorporated for the 
purpose of carrying on trade, as well as establishing a 
plantation or colony, and in the outset held, like said 
companies, their meetings in London. 

The charter of the said Governor and Company, which 
passed the seals March 4, 1628-9, in the fourth year of 
the reign of King Charles the First, provided that the 



freemen' or members of the company should choose 
from their own number a Governor, Deputy Governor, 
and eighteen Assistants, who should hold monthly — or 
oftener, if they saw fit — a meeting, called the Court 
of Assistants, to take care for the best disposing and 
ordering of the general affairs of the colony, and the 
plantation thereof, and the government of the people 
there, and for handling, ordering and despatching of all 
such business and occurrents as should from time to 
time happen, touching or concerning the said company 
or plantation. 

Four times a year a great and solemn assetnbly of 
the Governor, Deputy Governor, and such assistants 
and freemen as should choose to attend, was to be 
holden, called the Great and General Court of the 
Company (the Governor or Deputy Governor and 
seven Assistants being necessary to form a quorum), at 
which court they might choose other persons to be free 
of said company, — constitute and appoint such officers as 
they should see fit and requisite for the ordering, managing 
and despatching of the affairs of said Governor and Company , 
and their successors, and from time to time to make, 
ordain and establish all manner of wholesome and rea- 
sonable orders, ordinances, directions and instructions, 
laws and statutes, not contrary to the laws of England, 
for the welfare of the Company, and for the government 
of the plantation and the people inhabiting it ; and for 
the imposition of lawful fines, mulcts, imprisonments, 
and other lawful corrections, according to the course of 
other corporations in the realm of England. 

The said Company, having, before the date of the 
charter, purchased the territory over which it extends, 
from the Pljinouth Company in England, had already, 



in 1628, sent out a number of settlers, who were planted 
in Salem. The great object of the colonists was to 
establish their own forms of church government and 
discipline, in a place where they might live unmolested. 
A number of substantial and respectable gentlemen 
were willing to settle permanently in the new planta- 
tion, provided the patent and government should be 
legally transferred, and be established, to remain with 
them and others inhabiting it. 

The Company, on the motion of Matthew Cradock, 
the first Governor in England, agreed that it should be 
thus tr^sferred ; and in consequence of this arrange- 
ment, at a General Court, held at Mr. Goflf's house, on 
Tuesday, the 20th of October, 1629, John Winthrop 
was chosen Governor for the ensuing year, to begin on 
the day last aforesaid. At the said meeting, prior to 
the said election. Governor Cradock caused to be read 
an order^ formerly presented, concerning the buying of 
the ship Eagle, and desired to know the pleasure of the 
Court, for confirmation thereof Whereupon, some de- 
bate being had, the order was approved of 

The meetings of the Governor and Company were 
held in England for a period of more than twelve 
months after the date of the charter, — all which meet- 
ings took place in London, except the last two, which 
were Courts of Assistants, one of which was held at 
Southampton, and the other, on the 23d of March, 
1629-30, on board the Arbella, in Southampton 
harbor. 

The next meeting, being a Court of Assistants, was 
held at Charlestown, August 23, 1630. Two other 
Courts of Assistants were held at Charlestown; afterwards 
the meetings were held in Boston, the first of which, 



8 



being that of a General Court, took place on the 19th 
of October, 1630. 

In the small beginnings of the colony all business, 
excepting the election of officers and the admission of 
freemen, appears to have been transacted indifferently 
in the General Court or in the Court of Assistants. But 
the people soon indicated that they were jealous of 
their liberties, and at an early period, when the acts 
and doings of these courts partook in any degree of the 
nature of rules and regulations, — that is, of laws, — 
the people insisted that such acts and doings should 
not take place in the Court of Assistants, bu^ in the 
General Court only. 

Prior to the time that the charter and government 
were transferred and removed to New England, the 
proceedings at the meetings of the Governor and Com- 
pany related to the purchase or hiring of vessels, the 
fitting of the same for sea, the procuring of crews, pro- 
visions, clothing, arms, horses, cattle, fowls, books, seeds, 
and all such things as might be wanted by the passen- 
gers on the voyage, or after their arrival. So at the 
meetings in Charlestown, and at the early meetings in 
Boston, after Governor Winthrop and his company 
landed on these shores, the acts and doings of the courts 
related to all those small and necessary things which 
pertained to the first settlement in a wilderness. 

When these courts were held in England, and for a 
considerable period afterwards, the proceedings were 
conducted with much simplicity. At the time John 
"Winthrop was elected Governor in England, as above 
stated, he was chosen " by a general vote and full con- 
sent, by the erection of hands^ 

The acts and doings of these courts were, for several 



9 



years, in many respects similar to those of common cor- 
porations, and during the whole colonial period, propo- 
sitions and motions were not nnfrequently made in the 
General Court, and phraseology was used, similar to 
what might occur in the transactions of an ordinary 
association, or mere business company. 

The word orders was used to describe or denote the 
action of the General Court as well as that of the Court 
of Assistants, and their acts and doings were denomi- 
nated orders. The word order signified the action of 
either of these bodies, by which they expressed their 
judgment, opinion, or will, or made their decision, 
whether the matter acted on was great or small, impor- 
tant or unimportant, of a general character, or related 
to some particular or individual case. 

On almost all occasions the acts and doinsrs of the 
General Court were introduced by the phrase, " It is 
ordered!' Thus we find in these records provisions of 
this sort, viz. : It is ordered^ That a certain person be 
appointed captain, or agent, &c. ; ordered^ that his salary, 
or pay, be so many pounds ; ordered^ that a certain officer 
be removed. We find orders to pay Mr. Dunster, Presi- 
dent of Harvard College, several sums of money, on 
account of his salary. 

Whenever the action of the General Court is intro- 
duced by the words, " It is ordered," and a reference is 
afterwards made to such action in some subsequent 
proceedings of the General Court, such action is de- 
nominated an order. There is in the records of the 
General Court a considerable number of cases where 
the action of the court is introduced by the phrase " It 
is voted." In a small number of instances the nhrase 
is, " It is resolved." 

2 



10 



On examining the records of the General Court of 
the colony, as contained in five quarto volumes, pub- 
lished by virtue of two resolves of the Legislature of 
Massachusetts in the years 1853 and 1854, your Com- 
mittee found the whole number of pages to be 2549. 
They then noted the instances wherein the action of 
the General Court is introduced by the phrase, or 
words, " It is ordered," on a certain large number of 
these pages. They next looked over, though less par- 
ticularly, the residue of the 2549 pages aforesaid, and 
assuming that this phrase occurred in said residue as 
often, on an average, as in those pages in which the 
instances were carefully counted as aforesaid, your 
Committee came to the conclusion that the number of 
times in which the action of the court was introduced 
by the words "It is ordered," was 4253. Therefore 
there are in these volumes about 4253 orders. 

In a large number of cases the action of the court 
relates to a class of matters of the same kind, and in 
these instances the action of the General Court is ac- 
complished generally by an order, and sometimes by a 
vote. There are found in these records the phrases, 
" It is ordered and voted," and " It is voted and or- 
dered ; " " It is ordered and resolved ; " " It is resolved 
and ordered ; " " It is ordered and declared ; " and 
orders are called votes^ and votes are called orders. The 
General Court is sometimes adjourned by a vote, and 
sometimes it is adjourned by an order, showing conclu- 
sively that the word order has the same meaning and 
force as vote, and is used to accomplish precisely the 
same purpose. 

Your Committee believe they have now demonstrat- 
ed that the meaning of the word orders, when used in 



11 



the proceedings of the colonial legislature, is substan- 
tially the same as that of votes or resolutions ; such, cer- 
tainly, was its original meaning. But after a time it 
acquired a secondary meaning. Although it retained 
its original sense in its full force, it acquired by degrees 
a secondary signification in this way : In the day of 
small things of the corporate body denominated the 
Governor and Company of the Massachusetts Bay in 
New England, the action of the Assistants, and also of 
the General Court, related to individual or separate 
matters. There was no generalization. Few, if any, 
rules had been adopted in conformity with which divers 
matters or classes of matters were to be regulated, 
settled or transacted. The consequence was, that 
special action was had in every case, and everything 
was disposed of without the aid of, or reference to, any 
general rule or regulation. 

But about the time it was decided to remove the 
charter and government to New England, it became 
necessary to adopt certain general orders, which partook 
in some degree of the nature of rules and regulations, 
and afterwards, in the course of a few years, there were 
adopted by the General Court, at their sessions in Bos- 
ton, divers further general orders of a more important 
character, which might well be denominated laws. 

Throughout the colonial history, commencing about 
the third or fourth year after the arrival of Gov. Win- 
throp, the General Court appointed divers committees 
to peruse and examine all the acts and doings of the 
court of every kind or nature, general and special, 
passed from the beginning, or at a particular session 
(which acts and doings were almost universally accom- 
plished by orders), and to select out from all the said 



12 



acts and doings those orders which partook of the char- 
acter of rules and regulations, or laws, and "to collect, 
collate, abbreviate, or enlarge, revise, digest, compile 
and prepare the same for publication." 

Thus the particular orders by which rules, regula- 
tions and laws were adopted, began to be identified with 
the same, and so the word orders was at the first occa- 
sionally used to denote rules, regulations and laws. In 
this way it acquired a new or secondary signification. 

There was no subject about which so much interest 
was manifested by the members of the General Court, 
and amongst the magistrates and people, as that which 
related to the laws. During a period of about half a 
century, the General Court in about a hundred instances 
appointed committees or took other action touching 
this matter ; and the language used in their acts and 
doings on these occasions was laws, sometimes liberties, 
or liberties and laws, sometimes body of liberties, — 
then orders and statutes, then general orders, and laws 
and orders. 

There evidently was a diversity of opinion as to the 
word or words which should be used to designate the 
laws, or any code or digest thereof Zealous friends of 
liberty preferred one designation, and stern lawyers 
another. 

It very soon was perceived that as the word orders 
could not, strictly speaking, be considered as an act of 
the court, but the means by which an act was adopted ; 
and as the word had an original and well-established 
meaning, which was the same as that of votes, it was 
found convenient and necessary to connect this word, 
when used to indicate a rule or regulation, with laws or 
some kindred word. The phrase general orders was 



13 



sometimes used at the first. But laius and orders were 
regarded as the most appropriate combination. In the 
remarks of the Hon. Francis C. Gray, on the early laws 
of Massachusetts, from which your Committee have 
made several extracts, is to be found the following 
passage : " The fact, that almost all the articles in the 
Body of Liberties are in substance contained in ever}^ 
subsequent Digest of the colony laws, shows that the 
people were not dissatisfied with its provisions. But 
they still desired a more minute and complete code, to 
include all the laws and orders of general observation." 
When the word orders bears the same signification 
as that of laws, or a signification analogous thereto, it 
always, or certainly almost always, is used in connection 
with laws, under the phrase laws and orders^ or some 
equivalent expression. If the question be asked why 
these words are both used, it may be answered that, 
when some legislator or lawyer was appointed to peruse 
and examine all the acts and doings of the General 
Court, from the beginning, or for any particular period 
or session, and to select out all such as were laws or 
statutes, or in any way partook of the nature of rules 
and regulations, such person, in proceeding to make 
such selection and revision, would of course find certain 
acts or doings about which he might have some doubts. 
He might hesitate to raise them to so much importance 
as would be indicated by the designation of them as 
laws, and yet he might perceive they had the semblance 
of rules and regulations or of laws. Therefore he 
might well conclude to call them laws and orders^ which 
phrase would be sure to be applicable to whatever was 
contained in the selection made by him. This course 
is often taken in other similar cases. Orders and by-laws 



14 



are used by corporations and towns, and these combina- 
tions become familiar phrases, and a person at all ac- 
customed to them would be sure to repeat both words. 
He would not use one and omit the other, unless some 
good reason should exist for his doing so, such as that 
the single word used had a very different meaning, when 
standing alone, from what it had in connection with the 
other, and that the word, with such different meaning, 
w^as the appropriate one for that particular place. 

In the records of some corporations in Massachusetts, 
their acts and doings are introduced by the phrase, " It 
is ordered," and in others by the phrase, " It is voted." 
Sometimes, in the same corporation or body, the phrase 
used is, "It is voted;" sometimes the phrase used is, 
" It is ordered." In the same way, it appears, by the 
records of some towns, which are quasi corporations, 
that their acts and doings are introduced by the phrase, 
" It is ordered," while in other towns the introductory 
phrase is, " It is voted ; " and in the acts and doings of 
the same town the words " It is ordered " are some- 
times used, and in others the phrase is " It is voted." 
But whatever may be the introductory phrase, . the 
action of the town from time to time is generally des- 
ignated by the word orders, while in some instances it 
is designated by the word votes. This was the course 
of things before the Eevolution, and has been since. 

Whenever the acts and doings of towns are rules and 
regulations, or partake of the nature thereof, they are 
called orders and hy-laivs. In the city of Boston, it 
appears by the records, that the acts and doings of the 
Mayor and Aldermen, and also of the Common Coun- 
cil, are introduced by the phrase, " It is ordered." All 
acts and doings are denominated orders, whether they 



15 



relate to appointments, salaries, removals, or any mat- 
ters other than rules and regulations, which are called 
ordinances, it having been especially provided by an 
express order of the City Council, that all acts in the 
nature of orders and hy-laws should be styled ordinances. 

Under the colonial government, whenever a corpo- 
ration was established, such corporation was authorized 
to make "orders and by-laws," and similar authority 
was possessed by the towns ; and since the Eevolution 
all towns have been, and now are, by the laws of the 
Commonwealth, expressly empowered to adopt " orders 
and by-laws." 

It appears by the records of the Plymouth Colony, 
that the acts and doings of the Court of Assistants, and 
of the General Court, were generally introduced by the 
phrase, " It is ordered," and the results of the action of 
the Court were denominated orders, or rather court 
orders. They were called court orders, because they 
were adopted by a body called a court. 

From the foregoing history, it appears that whenever 
the word orders, standing alone, was used in any statute 
or act of incorporation of the General Court, or in any 
act of a corporation or town, the meaning was the same 
as votes or resolutions. Such was its primary and origi- 
nal meaning ; and when it was used in its secondary 
signification, denoting rules and regulations, this was 
indicated by its connection with the word laws, consti- 
tuting the phrase " laws and orders," or orders and hi/- 
latvs. 

Although, as it has been stated, the judgment, opin- 
ion, will or decision of the General Court of the colony 
were sometimes expressed by votes or resolutions ; yet, as 
these words were comparatively quite rarely used, and 



16 



when used, they had the same signification as the word 
orders^ and as the word orders, in a very great majority 
of cases, expressed and described the action of the 
court, it became the prevailing word to denote such 
action whenever the proceedings of the court during a 
particular session, or the whole period after the arrival 
of Gov. Winthrop, were spoken of, or mentioned. 

Your Committee will here introduce an incident that 
occurred during the administration of Gov. Shute, 
which goes to demonstrate that during our colonial 
history the words orders, votes or resolutions, though 
one of them might occasionally be used as in some 
slight degree more applicable, according to the nature 
of the subject, to this or that case, than either of the 
other words, were all three generally used to express 
the same meaning. 

In the year 1722, the House of Representatives, upon 
the memorial of the Overseers of Harvard College, 
adopted certain " resolutions," which were concurred in 
by the Council, and presented to Gov. Shute for his 
assent. These " resolutions " the Governor returned, 
with a conditional approval only, as follows, viz. : " I 
consent to these votes, provided the Eev. Mr. Benjamin 
Wadsworth, and the Rev. Mr. Benjamin Colman, and the 
Rev. Mr. Apple ton, are Dot removed by said orders, but 
still remain Fellows of the Corporation." Here the 
words '' resolutions," " votes," and " orders," were used 
to denote the same thing. 

It is stated by the Hon. Josiah Quincy, in his able 
and elaborate History of Harvard University, " that the 
Proceedings of the President and Fellows of the college 
are recorded as being done ' at a meeting of the Corpo- 
ration,' or introduced by the formula, ' It is ordered by 



n 

the Corporation ; ' " and by the early records of the 
college prior to the date of the charter, at meetings of 
what were denominated "the governors of the college," 
it appears that when elections of officers and servants 
took place, and allowances or compensation were made 
to them, or any similar matter was transacted, the acts 
and doings were introduced by the phrase, " It is 

ORDERED." 

Your Committee have examined also the records of 
the Corporation, containing their acts and doings for the 
period of half a century immediately succeeding the 
date of the charter, and they find the proceedings of 
that body, during these fifty years, were in most cases 
introduced by the formula, " It is ordered^' and occa- 
sionally by the phrase, " It is voted ; " and when the 
action of the Corporation, introduced by the phrase or 
formula, " It is ordered," is subsequently described or 
referred to, it is sometimes denominated an order, and 
sometimes a vote, showing conclusively that the word 
ORDER was considered as having the same meaning as 
that of VOTE. 

The action of the Corporation was therefore accom- 
plished by orders, signifying the same as votes, in perfect 
accordance with what the framer of the third clause of 
the charter intended and contemplated by the language 
used by him, when he drew the same and composed the 
proviso to that clause. 

Your Committee have caused to be inserted in an 
Appendix several extracts from the early records of the 
college, showing in what form and by what means the 
action of the " Governors of Harvard College," prior to 
the 31st of May, 1650, and of the "Corporation " after- 
wards, was effected, and they ask the particular atten- 



18 



tlon of the friends of the college to the record of these 
proceedings. 

If the language of our statesmen, legislators and 
scholars, — especially of those most familiar with the 
legislation of the colonial and provincial periods, — is 
particularly noticed and scanned, it will be found, when- 
ever an occasion arises for the use of the words orders, 
votes and resolutions, that these words, especially orders 
and votes, are used, or referred to, as equivalent or very 
similar expressions. Your Committee will not enlarge 
their report by referring to the writings of more than 
one of these statesmen, legislators and scholars, and 
they will cite from the writings of that one, whose 
thorough and accurate knowledge of the meaning and 
force of words is recognized everywhere. 

The distinguished gentleman alluded to was educated 
at Harvard College, and has been a Tutor, Professor and 
President of the same. He has had experience as a 
legislator in the Senate and House of Representatives 
of the United States, and in the Cabinet at Washing- 
ton as Secretary of State. He also has been Governor 
of Massachusetts, and of course presided at the Council 
Board, whose acts and doings are introduced by the 
phrase "It is ordered," and are denominated orders. 

Your Committee presume it is already understood to 
whom reference is made, and they will now proceed to 
cite two or three instances, out of many which may be 
found, to prove that the Hon. Edward Everett uses the 
words orders and votes as equivalent expressions. 

In the preface to a new edition of the laws concern- 
ing Harvard University, written by Mr. Everett, when 
President of the college, and bearing date Nov. 16, 
1848, he uses the following language, viz. : " At length, 



19 



on the 12th of Sept, 1846, the President was requested, 
by a vote of the Corporation, ' to consider and ascertain 
the present state of the college laws, and to make report.' 
This vote of the Corporation was understood to contem- 
plate a complete revision of the statutes and laws of 
the University. 

" In pursuance of this order ^ on the 27th of Novem- 
ber of the last year, a revised code of law^s was reported 
by the President to the Corporation, and by them 
ordered to be privately printed, with a vicAV to its con- 
sideration by the two Boards. At the following meet- 
ing, on the 27th of December, it was laid before the 
Corporation in a printed form. It was ordered by the Cor- 
poration at the same time, that a printed copy should 
be furnished to each member of the college Faculty, 
and to the Faculty of each professional school, with the 
request that they should submit to the Corporation in 
writing such remarks as they might think proper to 
make on any part of the proposed code. 

" On the 15th of January of the present year the 
revised code, as reported by the President, was, in con- 
nection with the remarks of the members of the 
Faculties, taken up for consideration by the Corpora- 
tion, at a special meeting called for this purpose, and it 
was further considered at several adjourned meetings in 
the course of the winter and spring of 1848. Sundry 
amendments were adopted by the Corporation ; and on 
the 23d of May, 1848, the revised code was ordered to 
be printed, as amended at that and the preceding meet- 
ings of the Board. Farther amendments were adopted 
at the meeting of the Corporation on the 27th of May, 
and on the 10th of June last the following orders were 
passed : — 



20 



" Voied, That the Revised Laws of the college, as 
submitted at the last meeting, be adopted by the Board, 
and it was ordered that the same be signed and certified 
by the Secretary. 

" VotM, That the President be requested to lay the 
laws, as adopted, before the Board of Overseers, that 
they may concur in the same, if they see fit." 

Your Committee come now to the consideration of 
that part, before referred to herein, of the charter of 
Harvard College, granted by the General Court, and 
bearing date May 31st, 1650. This part of the charter 
is commonly denominated the third clause thereof, and 
is as follows, viz. : " And the President and Fellows, or 
the major part of them, from time to time, may meet 
and choose such officers and servants for the college, 
and make such allowance to them, and them also to 
remove, and, after death or removal, to choose such 
others, and to make from time to time such orders and 
by-laws, for the better ordering and carrying on the 
work of the college, as they shall think fit ; provided the 
said ORDERS be allowed by the Overseers." 

This clause is a very important part of the charter, 
and confers several large powers. The clause may be 
divided into four parts, or provisions ; — the Jirst giving 
the power to the President and Fellows to choose officers 
and servants; the second^ to make allowance to them — 
that is, to prescribe their salaries ; the third, to remove 
them ; and the fourth, to make orders and by-laws. 

The President and Fellows, by accepting the report 
aforesaid of their committee of November, 1856, have 
substantially declared that their power to elect and 
appoint instructors, officers and servants of the college, 
is derived from, and rests upon, this third clause, and 



21 



that they possess, by virtue of said clause, the power to 
make allowances to such instructors and officers, and to 
make removals and orders and by-laws. There is not, 
therefore, any difference of opinion on this subject be- 
tween the two Boards; certainly none so far as the 
appointments, the salaries and removals of officers of 
instruction and government are concerned. 

The question then arises whether the Overseers have, 
by virtue of the proviso to said third clause, the right 
of concurrence or non-concurrence in relation to the 
exercise of the powers in the third clause of the charter, 
conferred upon the President and Fellows. 

For the first time in the history of the college, it was 
distinctly asserted on behalf of the Corporation, in the 
report of Nov., 1856, to that Board, that the said pro- 
viso, in the following words, " Provided the said orders 
be allowed by the Overseers," applied to the fourth pro- 
vision only of said third clause, by which provision the 
President and Fellows are authorized " from time to 
time to make orders and by-laws for the better ordering 
and carrying on the work of the college ; " and it is in 
fact insisted in said report that the Overseers have no 
right of approval or disapproval of the votes of the 
-Corporation by which they elect officers of instruction 
and government. 

As to this doctrine set up on the part of the Corpora- 
tion, your Committee make answer : In the first place, 
the words, " as they shall think fit," at the conclusion 
of all the substantive enactments in said third clause, 
apply to each of said four provisions. Of this there 
can be no possible question, and the presumption there- 
fore is, that the proviso immediately following the said 
words, " as they shall think fit," has as extensive an ap- 



22 



plication as said concluding words of all said substan- 
tive enactments. 

In the second place, your Committee insist with the 
utmost confidence that if the said proviso had been in- 
tended to apply to the said part or provision only, w^hich 
relates to the making of orders and hy-laivs^ it would 
have read as follows : provided the said orders and hy- 
laws be allowed by the Overseers. 

It is believed that not an instance can be found in the 
whole history of legislation in Massachusetts since Gov- 
ernor Winthrop came over with the colonial charter, 
down to the present time, where two important words, 
such as rules and regulations, or orders and laws, or 
orders and by-laws, have ever been used in a substan- 
tive enactment, which is followed by a proviso for the 
special purpose of qualifying said two words, and then 
in such proviso one of such words only is used, and the 
other is omitted. It is believed that no such thing ever 
occurred in the Legislature, or in the doings of any 
town, municipal or other corporation. It is a mistake 
not likely to occur. Indeed, it may be pronounced the 
most unlikely thing that could happen. Members of 
the General Court, selectmen of towns, or directors of 
an ordinary corporation, may spell incorrectly, or com- 
mit many mistakes or blunders, but when, in drafting 
an act or vote, they use two important words, especially 
such as constitute a common and familiar phrase, which 
ought by all means to be repeated in a proviso, if a 
proviso is to be introduced for the purpose of so quali- 
fying them, then such members, selectmen, or directors 
can hardly fail to repeat both words in such proviso. 

If the chairman of a committee, or other person, had 
undertaken so important a work as to draft a college 



23 



charter, and he had inserted the words orders and by- 
laws in a substantive enactment, as in this case, and 
then the next instant he had proceeded to compose a 
very short proviso, containing a single line, for the pur- 
pose of qualifying said substantive enactment, — that is, 
the most prominent part thereof, — is it possible that he 
would omit half of a familiar phrase, and leave out one 
of two words of special importance ? Besides, had the 
bill been so drawn, with the word hj-lmvs omitted in the 
proviso, and the obvious design and intention of the 
bill had been that it should be inserted, would not the 
committee on bills in the third reading, or the com- 
mittee on engrossed bills, have detected the omission, 
and seized the opportunity to magnify their official 
consequence by correcting the error ? 

These circumstances go to prove conclusively that 
the word orders alone was manifestly the correct ex- 
pression, and was used in the proviso by the person who 
drafted the charter, with special intention^ so that a word, 
signifying the same as votes^ should constitute the sub- 
stantial part of the proviso, and make it applicable to 
not only the orders or votes by which orders and by- 
laws should be adopted, but to the orders or votes by 
which elections, allowances and removals should be 
made by virtue of the three first parts or provisions of 
the third clause. 

In the third place, it should be borne in mind that the 
charter of Harvard College created the first corpora- 
tion which was established by the colonial legislature, 
and no other corporation existed in the colony for some 
time afterwards. This charter deprived the General 
Court of divers powers they had previously possessed 
and exercised. It is somewhat remarkable that the 



24 



friends of the college were able to obtain a charter, con- 
ferring such important powers as this did, subject even 
to the sanction or revision of the Overseers. Would it 
then have been possible to repress the jealousy which 
would have arisen against granting to a body, consist- 
ing of seven persons only, such important powers as 
are given to the Corporation by the third clause of the 
charter, without conferring on the Overseers the right of 
approval or disapproval ? 

It would have been very strange if the General Court 
had given to the Corporation full and uncontrolled 
authority to appoint all officers of instruction and gov- 
ernment, to establish their salaries, and, above all, to 
make removals of any such officers, without the sanc- 
tion of the Overseers, while the said court would not 
allow the same body, without the consent of the Over- 
seers, to make any orders and hy-laws, even such as 
related to the dress of the students at commencement, 
or on any other occasion, — or such as prohibited any 
student from ordering sizings at commons beyond the 
amount of forty shillings during one college term, or 
from being present at a class meeting without special 
license, — or from going to any tavern in Cambridge 
for the purpose of eating or drinking, — or keeping, 
without leave, any gun or pistol, horse, dog, or other 
animal (including, of course, a cat or a canary bird), in 
Cambridge. It certainly would have been quite extraor- 
dinary if the General Court of the colony had given to 
the Corporation full power to appoint a professor of 
DIVINITY, or of MATHEMATICS, and to establish their salaries, 
and to REMOVE them from office, without being obliged 
to consult the Overseers, or ask their approval ; and 
yet that the court should have made it necessary to call 



25 



together the Overseers, consisting of the Governor, 
Deputy Governor, and all the magistrates of the juris- 
diction, with the teaching elders of the six adjoining 
towns, and require them to assemble for the purpose of 
giving validity to one or more petty orders and by-laws, 
adopted by the Corporation. 

Fourthly, The President and Fellows have, in a formal 
manner, by accepting said report to them of Nov., 1856, 
admitted and declared, that " appointments, made by 
the Corporation, of officers of instruction and govern- 
ment, have from the earliest times, and, as is believed, 
with entire uniformity, been sent up to the Overseers 
for concurrence or rejection ; and that the submission 
to the Overseers of all appointments to offices of in- 
struction and government has not only the sanction of 
antiquity coeval with the chartered existence of the 
college, but is of great moment as a safeguard against 
appointments from interested and private motives ; and 
invests the officers thus confirmed with a sense of public 
responsibility, and with dignity and authority of great 
value in establishing effective influence over the scholars, 
and in elevating the character of the institution." 

Can it be imagined that the General Court, in 1650, 
would have granted a charter with a defect so palpable 
as would have existed if the right of approval or dis- 
approval of such appointments had not been conferred 
on the Overseers ? 

In the year 1851 the President and Fellows presented 
a memorial to the House of Representatives, which was 
signed by the members of the Board. In this memorial 
they found it necessary to allude to the powers of the 
Corporation. They stated that " in Williams College, 
and in nearly all the colleges of the country, there is 

4 



26 



but one Board, consisting of members who hold perpet- 
ual succession, fill up their own vacancies, make all appoint- 
ments^ and transact the important business, without the 
control or advice of any other authority, and that in 
the exercise of power the Corporation is under much 
heavier restraints than is customary in other similar 
institutions." Again, in page 47 of said memorial, the 
Corporation say: "It" (the charter) "gave to them" 
(the Corporation) "the sole power of appointing all 
officers and servants of the college, and vested in them the 
exclusive right of enacting rules and laws for its govern- 
ment, and administering ih&m., suhj ed only to the approval 
or disapproval of such appointments, rules and laws, hy the 
Overseersr 

Thus the Corporation in said memorial most distinctly 
and fully admit that the Overseers have the right of 
approval or disapproval of all votes by which the Cor- 
poration make orders and by-laws. Of course they refer 
to the proviso at the end of the third clause of the 
charter, by which the Overseers have, by universal ad- 
mission, this right of approval or disapproval as to 
orders and by-laws; and the Corporation say in the 
very same connection, that the Overseers have this right 
as to appointments, and therefore they must have it by 
virtue of said proviso. 

Again, it is expressly admitted and declared in the 
said report to the Corporation of Nov., 1856, that if 
said proviso applies to appointments it applies to salaries ; 
consequently the Corporation by their memorial to the 
Legislature in 1851, and by the report of Nov., 1856? 
accepted by them, may well be considered as having de- 
clared that the Overseers have the right of approval or 



27 



disapproval of the votes of the Corporation by which 
appointments are made and salaries are estabHshed. 

Fifthly. Your Committee now come to the applica- 
tion of the evidence in relation to the meaning of the 
word orders^ standing alone, which they have pre- 
sented in the former part of their report, having de- 
rived the same from the records of the General Court 
of the colony and other bodies, and from the records 
of the Corporation of Harvard College ; and they make 
the point that the word orders^ so used in the proviso at 
the close of the third clause of the college charter, un- 
connected with the word by-laws, or other word or 
words of similar signification, must mean votes or reso- 
lutions ; that is, the votes by which the President and 
Fellows make elections of " officers and servants of the 
college," also allowances and removals, and pass orders 
and by-laws, in conformity with the authority given to 
them in the four parts or 23rovisions of said third clause. 

There is no evidence or glimmering of evidence in 
said third clause, or in any other part of the charter, or 
in the appendix, tending to show that the word orders, 
standing alone in said proviso, signifies rules and regu- 
lations, or orders and by-laws, but the reasons before 
stated, and every circumstance connected with said 
clause, and other parts of the charter, or with the 
appendix, go to prove that the single word orders in 
this place must mean votes. 

The phrase orders and by-laws occurs twice in the 
charter and three times in the appendix, whereas the 
word orders, standing alone, is found once only, and 
that is in the charter. In the first clause of the appen- 
dix there is a provision touching orders and by-laws, 
and that phrase is used in the substantive enactment, 



28 



and then comes a proviso qualifying said pKncipal or 
substantive enactment, and the same phrase, that is, 
both said words, orders and by-laws, is repeated. This 
may well be regarded as a very significant circumstance. 

By considering the word orders in the proviso to the 
third clause of the charter as meaning votes, which is 
the universal signification thereof, when standing alone, 
or certainly almost the universal signification, every- 
thing is made plain, and every difficulty is removed. 
The whole of the third clause, and every part of it, 
thus becomes sensible, consistent, intelligible, reason- 
able, and free from all ambiguity and absurdity. 

Your Committee will now set forth this third clause, 
with a substitution of the word votes for orders, and 
thus enable every one to perceive how simple and plain 
the whole clause appears, as follows, viz. : — 

" And the President and Fellows, or the major part of 
them, from time to time, may meet and choose such 
officers and servants for the college, and niake such 
allowance to them, and them also to remove, and, after 
death or removal, to choose such others, and to make 
from time to time such orders and by-laws, for the 
better ordering and carrying on the work of the 
college, as they shall think fit ; provided the said votes be 
allowed by the Overseers." 

Suppose the last provision in the third clause, by 
which authority is given to the Corporation to make 
orders and by-laws, had been wholly omitted, or had 
been inserted in some other part of the charter, entirely 
separate and distinct from the third clause, then the 
third clause would have read as follows, viz. : " And the 
President and Fellows, or the major part of them, from 
time to time, may meet and choose such officers and 



29 



servants for the college, and make such allowance to 
them, and them also to remove, and, after death or 
removal, to choose such others, as they shall think fit ; 
provided the said orders be allowed by the Overseers." 

Would not such a clause have been perfectly plain 
and intelligible? and would there in such case have 
been any doubt whatever of the meaning of said pro- 
viso ? Surely, the mere addition or insertion of the 
fourth part or provision as to the making of orders and 
by-laws, as it now stands in the third clause in the char- 
ter, cannot change the meaning of the other three parts 
or provisions, or the force and effect of the proviso, or 
affect its relation to said three first parts or provisions 
of the third clause. 

It is quite certain that the person who drafted the 
charter, must, when he drew the third clause, constantly 
have had in his mind the fact that the Corporation 
w^ould appoint officers and servants of the college, and 
remove them, make allowances to them, and pass orders 
and by-laws, in accordance with the practice in the 
General Court in similar cases. Therefore he, without 
doubt, regarded the four provisions of said clause as 
having the same meaning and effect as they would have 
had if the Corporation had been expressly authorized, 
by orders or votes, to make such appointments, allow- 
ances, removals, and orders and by-laws. Consequently, 
when he composed the proviso to said clause, he had 
special reference to said orders or votes, which he consid- 
ered just as certainly implied and embraced in said pro- 
visions of said clause, as if the word orders or votes had 
been actually inserted therein. The words, " the said 
orders," therefore, in said proviso, so far from being of 
" doubtful interpretation," are the most apt and appro- 



30 



priate that could have been used " to convey a clear 
and certain allusion " to the making of appointments, 
allowances and removals, as well as to the passing of 
orders and by-laws. 

The framer of said third clause well understood what 
was intended by said four parts or provisions thereof, 
and what would be the action of the Corporation by 
virtue of said provisions, and by what means their 
action would be accomplished. When, therefore, he 
proceeded to draw the proviso, which was to qualify 
such action, or the means by which it would be effected, 
he selected such fitting expression as should describe 
such action or means, and consequently used the phrase, 
"the said orders." 

Although the language of the substantive enact- 
ments in said third clause is elliptical, and the means 
by which appointments, allowances, &c., are to be 
made by the Corporation are not expressly set forth, 
yet they are so plainly indicated that the same cannot 
be misunderstood, and the framer of said clause in com- 
posing a proviso, or subsequent condition thereto, did 
not hesitate, well understanding w^hat the intention of 
said enactments was, to adopt a direct and specific term 
to describe such intention, and to express the means by 
which the Corporation was authorized to make appoint- 
ments, allowances, removals, and orders and by-laws, 
and which were to be qualified by said proviso. 

Of the committee of the Overseers, whose report, as 
hereinbefore stated, was made to that Board in Janu- 
ary, 1856, the late Hon. Samuel Hoar was a member. 
Mr. Hoar was a warm friend of the several members of 
the Corporation, and entertained great respect for them. 
He at all times took a deep interest in the affairs, sue- 



31 



cess and prosperity of the college, and was one of its 
most devoted and sincere friends. He had carefully 
studied the charter and the laws supplementary thereto. 
He was an able lawyer, and was particularly familiar 
with the statutes of the Commonwealth, and had care- 
fully studied the legislation that arose during the 
colonial and provincial periods. He was in large and 
full practice at the bar for a period approaching half a 
century. He was a member of our State Senate and 
of our House of Representatives, and was a represen- 
tative in the Cong-ress of the United States. He was 
often present at ecclesiastical councils — sometimes as 
a delegate, and at other times as legal adviser and 
counsel. He had extensive knowledge of the affairs 
and doings of towns and corporations in Massachusetts, 
and was familiar with the language and phraseology 
used in their transactions and records. 

At the first meeting of said committee of the Over- 
seers, one of the members called the attention of Mr. 
Hoar to the second clause of the appendix to the col- 
lege charter, and suggested that by the provisions of 
that clause the Overseers might be considered as pos- 
sessing the right of revision as to all the acts and doings 
of the Corporation, without any exception. This sug- 
gestion did not meet with favor from Mr. Hoar, and he 
remarked that he was wholly opposed to the opening 
of an additional source of discussion, or to the raising 
of any question, predicated on this middle clause of the 
appendix, which might embarrass the Corporation, or 
lead to the setting up of a new construction adverse to 
the rights of that body. He said the Corporation had 
for more than two centuries been the bulwark of the 
college, and that he should be sorry to have a founda- 



/ 



32 



tion laid for an attempt to impair or affect in any way 
the powers conferred upon them by the charter. He 
then observed that the committee had better confine 
their attention to the third clause of the charter, which 
gave to the Overseers all the control over the acts of the 
Corporation which they could desire. This clause, he 
said, expressly conferred divers important powers on 
the President and Fellows of the college, and by it 
they were authorized to make appointments, allowances, 
and removals, and to adopt orders and by-laws, the 
exercise of all which powers were made subject to the 
approval or disapproval of the Overseers, by the pro- 
viso at the end of said clause. He further remarked 
that his attention had been called to this part of the 
charter many years ago, and that the opinion he then 
formed and still entertained was, that the word orders 
in said proviso had the same meaning as that of votes, 
being the votes by which the Corporation should make 
appointments, &c. 

The committee adopted the advice of Mr. Hoar, and 
concluded to regard the provisions of the third clause 
as containing the authority of the Corporation to make 
appointments, allowances, removals and orders and by- 
laws, and to consider the said proviso as giving to the 
Overseers the right of approval or disapproval of the 
orders or votes of the Corporation, by which they 
should make all such appointments, &c. 

As the said committee of the Overseers could not find 
that there ever had been any discussion between the 
two Boards in relation to the special meaning and force 
of the word orders in said proviso, a suggestion was 
made that the committee should not go into an expo- 
sition of the position taken by them, and of the grounds 



33 



of their opinion on this particular point, trusting that 
the Corporation would concur in the position so taken ; 
but if the Corporation should dissent from the conclu- 
sions of said committee of the Overseers^ and should 
express their views on the subject, then some future 
committee of the Overseers might make a full expla- 
nation and exposition as to the meaning of the word 
orders in said proviso ; and the committee of this Board 
made their report in January, 1856, in accordance with 
said suggestion. 

Your Committee will now ask the attention of the 
Overseers to the course of measures and doings of 
these Boards since the date of the charter, having a 
tendency to throw light upon the construction of that 
instrument, especially of the first part or provision of 
the third clause of the charter. 

The Corporation has from the beginning employed, 
either directly or through the agency of others, suitable 
persons to render inferior and humble service, such as 
laborers, sweepers, carpenters, painters, glaziers, cook, 
butler, baker, brewer, master of the kitchen, and pur- 
veyor of commons, being all the ministerial agents or 
servants from the lowest up to that of steward, who 
at the beginning had charge of providing for the board 
of six or eight students, and possibly of two or three 
instructors or officers of government. The steward was 
master of the kitchen, and sometimes probably acted as 
chief cook, until, by the increase of the number of 
students, it became necessary to have an under steward, 
who took the special management of the affairs in the 
kitchen. The definition of " a stew^ard in a college is 
the person who provides provisions for the students." 
This course has been at all times pursued by the Cor- 



34 



poration without asking the formal approval of the 
Overseers. The question now arises, Yfhat was the 
origin of this practice, and may be considered as the 
legal effect thereof ? 

Upon the organization of the Corporation under the 
charter, there can be no doubt that the President and 
Fellows at once made a careful survey and examination 
of its provisions, and considered what construction 
thereof would be the true construction, and would be 
most beaeficial to the interests of the institution, as well 
as most expedient on the whole for their own body, 
and most convenient and satisfactory to both Boards. 

They well understood that the first great object of 
the charter was to establish a corporation, in which 
would be vested the title to all the property, real and 
personal, belonging to the college, and to give to said 
corporation the sole and absolute control and manage- 
ment of the same. 

They at once perceived that, in order to secure this 
sole and absolute management of said property, it was 
expedient and requisite that the Corporation should 
employ and appoint all the agents and servants, through 
whom they could possess and retain this management. 
They must have seen the desirableness of their employ- 
ing and appointing these agents and servants by virtue of 
an inherent and necessary power, which they might con- 
sider themselves as deriving from that primary and all- 
important enactment of the charter, by which said title 
was vested in, and said sole and exclusive management 
was virtually conferred upon, them. They undoubtedly 
preferred to exercise this power as an original and 
essential right, irrespective of the subsequent provisions 
of the charter, contained in the third clause, where 



35 



there was a certain right of approval given to the 
Overseers, the construction of which might be a source 
of inconvenience to the Corporation. 

With these views probably the President and Fel- 
lows chose and employed all the agents and servants of 
the college, from the steward inclusive down to the 
mere laborers, without asking the approval of the other 
Board ; and they found no difficulty in pursuing this 
course, because the Overseers perceived it was, and 
would at all times be, neeessarjj, and would be much more 
convenient to their Board, and more beneficial to the 
college than any other course. 

The Overseers probably never knew or suspected 
that the Corporation might be influenced at the begin- 
ning by any such consideration as above suggested, 
with reference to an original, inherent and exclusive 
power on their part, in the employment or choice of the 
agents and servants aforesaid, without asking the appro- 
val of the Overseers. The Overseers, without doubt, 
verily supposed that the Corporation had adopted this 
course from a consideration of the intrinsic propriety 
and actual necessity of the thing, and with reference to 
the convenience of both Boards, and the Overseers for 
the same reasons acquiesced therein. 

It is manifestly of no consequence whether the 
course, pursued as aforesaid in relation to this subject, 
had its origin in the desire and intention of the Presi- 
dent and Fellows to keep in their own hands the sole 
and exclusive management of all the property belong- 
ing to the college by virtue of the inherent and inci- 
dental power aforesaid, or whether the President and 
Fellows considered themselves as choosing and employ- 
ing the steward and the servants below him, by virtue 



36 



of the third clause of the charter, and found it a matter 
of indispensable propriety and necessity to do this 
without the ceremony of laying a formal vote in every 
case before the Overseers for their approval or disap- 
proval, and the Overseers assented at the beginning and 
ever afterwards to this course, with the same wise fore- 
cast and in the same good spirit with which the Corpo- 
ration appeared to have adopted it. The practical effect 
was the same in either case. 

Suppose the Overseers had, by virtue of what they 
considered their just rights, insisted that the Cor- 
poration should, at regular meetings, in a formal 
manner, by orders or votes, make appointments of 
laborers, perhaps such as might be employed to do 
some small job, and lay such orders or votes before the 
Overseers for their approval, and the members of the 
latter Board, consisting of the Governor, Deputy Gov- 
ernor, and thirty or forty other honorable and reverend 
gentlemen, had been called together to act upon such a 
matter, would not this, besides being excessively trouble- 
some, have been regarded as quite ridiculous ? The 
Overseers must have seen the importance and the man- 
ifest necessUi/ of leaving all such matters, occurring every 
day, and perhaps several times a day (being, too, of a 
mere business character, and relating to the manage- 
ment of lands, buildings, and chattels), in the sole and 
exclusive charge of a small Board like that of the Cor- 
poration. 

It was proper that there should be some understand- 
ing as to the limit to which this practice should extend, 
and there was an obvious propriety, when the charter 
went into operation, of beginning with the humblest 
servant, and extending the above practice as far as the 



37 



steward — that is, to all below the grade or rank of 
officers of instruction and government. The students 
were required to take off their hats in the presence of 
the professors, tutors and other officers of instruction 
and government, and to exhibit some token of recogni- 
tion and respect when passing them ; but not so with 
regard to the steward and all servants below him. The 
steward, although an important functionary and standing 
in a place higher than that of some other individuals 
in the employment of the college, must at an early 
period have occupied a humble position. In Judge 
Sewall's diary is the following entry, under date of July 
15,1687: — '^Andrew Boardman, steward and cook of 
Harvard College, buried." 

For the first forty years the number of graduates 
was on an average about six annually, and for the first 
seventy-one years the average annual number was 
about nine. It certainly could not be a place of much 
dignity or consideration to provide food for six or nine 
boys, some of whom were, perhaps, young Indians, the 
education of whom was one of the expressed objects of 
the founders of the institution. 

So also, at the beginning, the number of books which 
were the property of the college was small, and there 
does not appear to have been any regular librarian for 
the first seventeen years after the granting of the 
charter, and when, in 1667, a librarian was employed or 
appointed, the position must have been regarded as a 
humble one, and the same course was taken as to him 
as was pursued with regard to the inferior servants 
aforesaid, till the year 1767. When the librarian was 
first appointed, his rank was similar to that of the 
steward, and it was understood that the Corporation did 



38 



not deem the employment or appointment of a libra- 
rian of sufficient importance to warrant the formality 
of consulting the other Board, or asking their consent 
or concurrence. The Overseers took the same view of 
the matter, and acquiesced very cheerfully in the course 
pursued by the Corporation till the year 1766, when, on 
the 6th of May, a committee of the Overseers, of which 
Lieut. Gov. Hutchinson was chairman, was appointed 
" to enquire into the state of the college, and to consider 
of such things as may be beneficial to it." This com- 
mittee made a report, the conclusion of which was as 
follows : — " The committee are further of opinion that 
it would tend to strengthen and assist the government 
of the college if the librarian were vested with all the 
powers of tutors, and joined with them in the govern- 
ment of the society." 

In pursuance of this suggestion of the Overseers, as 
it is presumed, the Corporation, at a meeting held soon 
afterwards, passed the following rule and regulation, 
viz. : — 

" The librarian shall be appointed by the Corporation, 
with the consent of the Overseers, and shall have the like 
power and authority to punish the under-graduates for 
any disorders, or breaches of the college laws, as the 
tutors have ; and he shall act in conjunction with the 
President and tutors in the government of the society 
in all their meetings ; and with the President, profes- 
sors, and tutors, in all such cases as come under their 
cognizance, and shall he entitled to the same tokens of respect 
from the under-graduates as the tutors are ; and shall have 
a chamber assigned him by the Corporation, suitable for 
the inspection of some district in the college." 

This act of the Corporation, having been laid before 



39 



the Overseers, was assented to by them. When your 
Committee, in their report, shall hereafter speak of the 
officers of instruction and government, they wish to 
have it understood that they consider the librarian as 
one of that number. The librarian, having thus been 
raised above the grade of the inferior servants afore- 
said, and elevated to the rank of officer of instruction 
and government, the order or vote by which any person 
was afterwards appointed by the Corporation to fill that 
place was laid before the Overseers for their approval. 

A formal declaration respecting the appointment of 
the librarian, and the right of approval or disapproval, 
on the part of the Overseers, of the action of the Cor- 
poration by which that officer is so appointed, was made 
by both Boards in the 138th article of the edition of 
1848 of the laws concerning the university, which 
article is as follows, viz. : — 

" The librarian is chosen, like the other officers of the 
UNIVERSITY, by the Corporation, with the concurrence of 
THE Overseers ; he is to continue in office during their 
pleasure, and he shall be subject to removal for neglect 
of duty or misbehavior." Thus it appears that when 
the librarian was raised to the rank of an officer of gov- 
ernment and instruction in the university, he stood on 
the same footing with those officers, as to his appoint- 
ment and liability to be removed, the Overseers having 
the right of approval or disapproval in each case ; and 
the marked distinction between such officers and the 
steward, as well as all the agents or servants below him, 
was continually kept up, and all matters relating to the 
steward and other inferior servants remained, without 
any questions being raised, in the same state as at the 
beginning, and subsequent thereto, till the year 1778. 



40 



During that year a vacancy occurred in the situation 
of steward, and the Corporation selected and employed 
Mr. William Kneeland to fill the same, in accordance 
with the previous practice, and the understanding of 
both Boards, that the Overseers should not be consulted, 
or take any part in relation to the matter. But it 
so happened that Mr. Kneeland being considered as 
unfriendly to the cause of American independence, the 
selection and employment of him by the Corporation 
to be steward was objectionable to some of the zealous 
whigs in the Board of Overseers. On this account it 
seems to have been thought expedient, in order that the 
Overseers might control the matter, to insist on their 
right to approve or disapprove the election of steward 
by the Corporation in all cases. 

Accordingly, at a meeting of the Overseers in Dec, 
1778, the following vote was passed, viz. : — "It being 
a matter in dispute between the Corporation and Over- 
seers, whether the election of a college steward ought 
to be presented to this Board for their approbation, and 
the Board, not being in possession of the charters by 
which this point ought to be decided, it was voted that 
the secretary be directed to deliver to the president of 
the council, as soon as may be, copies of the charter 
granted by the General Court in the year 1642, and of 
that granted in 1650, and of the appendix, granted in 
1657, for the inspection of the Overseers, that they 
may the better be able to discuss the matter in dispute, 
and come to a determination upon it at the adjourn- 
ment of this meeting." 

On the 16th of said December this adjourned meet- 
ing took place, twenty-three members being present; 
and the record states, that " after some debate it was 



41 



moved that the question should be put, whether this 
Board have a right to a presentation of the person, 
elected hy the Corporation in the office of steward, for 
their approbation or disapprobation ; whereupon the 
previous question was moved, whether this question shall 
be now put, — which, being put, it passed in the nega- 
tive." 

Thus a full account has been given of this transac- 
tion, to which much importance has been attached by 
the committee of the Corporation in their report afore- 
said of Nov., 1856 ; and your committee are persuaded 
that at said meeting of the Overseers, a majority of the 
members present, being satisfied that the movement 
had been got up by zealous and heated politicians, for 
the purpose of preventing Mr. Kneeland, or any other 
person, to whom they had objections, from holding the 
situation of steward, resolved for various reasons to 
defeat the project by the old parliamentary practice of 
moving the previous question, whereby the necessity of 
voting on the precise question raised might be avoided, 
and the whole matter would be indefinitely postponed. 
The previous question was therefore moved, and the 
vote being taken whether the main question should be 
then put, it was decided in the negative, and the whole 
subject was thus got rid of and postponed indefinitely. 

The majority were unwilling to have the main ques- 
tion decided in the affirmative or the negative, and 
without doubt they believed that the worst thing that 
could happen would be to have it pass in the affirma- 
tive ; for they understood that if such should be the 
result, the Corporation might not assent to it, and then 
a most unprofitable controversy would arise between 
the two Boards, with as much annoyance to one as the 

6 



42 



other ; and if the Corporation should acquiesce in such 
a result, it would be necessary to change the practice, 
which, from the beginning, had worked so well, and all 
the members of the Board, after the heat engendered 
on that occasion had subsided, would regret the change, 
and be annoyed by having formal orders or votes laid 
before them for approval or disapproval, by which such 
a functionary as the steward had been elected ; and 
probably a further movement would be made to have 
the rule extended to the selection or election of a baker, 
brewer, butler, cook, carpenter, and sweeper. 

For these, and perhaps other reasons, the major part 
at said meeting, held in Dec, 1778, chose to have no 
change made respecting the. steward, who, by the laws 
and usages of the college, was entitled to no recognition 
or mark of respect from the students, and was exposed 
to indignities and all kinds of rudeness from them on 
account of the peculiar services and various disagree- 
able duties he was obliged to perform, some of which 
were very offensive to the students, as the history of 
the college fully discloses. 

The Overseers on this occasion, as at all times pre- 
viously, preferred not to have any question acted upon, 
or agitated, as to their having any rights in relation to 
the employment or election of steward and the servants 
below him. The course pursued for more than two 
hundred years on this subject by the Corporation and 
the Overseers is deserving of special commendation. 
The Overseers have shown much practical wisdom 
touching all these inferior and smaller matters, by uni- 
formly adhering to the observance of the sound and 
safe maxim, " De minimis non curat fa." 

In the judgment of your Committee the foregoing 



43 



practice, according to which the Corporation have chosen 
or employed the steward and all other servants below 
the grade of officers of instruction and government, 
without consulting the Overseers, or asking their appro- 
val, has no tendency, nor does it begin to have any 
tendency, to show that the Overseers do not possess the 
right of approval or disapproval in relation to the ap- 
pointment of all officers of instruction and government, 
and any others that have been or may be raised above 
tlie grade of steward. No one will venture to say that 
there are not some persons engaged in the service of 
the college, whose employment by the Corporation it 
would b^ most absurd and ridiculous to present to the 
Overseers for their approval or disapproval. The line 
must be drawn somewhere, and whether the subject is 
considered in the legal point of view, founded on some 
claim of inherent power of the Corporation as afore- 
said, or as a mere practical matter, it was without doubt 
appropriate, especially for a considerable time after the 
date of the charter, that the line of demarcation should 
be occupied by the steward ; and the same having been 
adopted at such early period, under the circumstances 
then existing, it has been deemed proper not to change 
it since that time. The reasons for this course, and the 
actual necessity of the thing, were most obvious and 
conclusive. 

On the other hand, your Committee insist, with the 
utmost confidence, that the universal practice on the 
part of the Corporation, to adopt a formal order or vote 
in every case where an officer of instruction and gov- 
ernment, or other functionary partaking of that charac- 
ter, or raised to that dignity, was to be chosen, and to 
lay such order or vote before the Overseers for their 



44 



approval or disapproval, is conclusive evidence that the 
Corporation have at all times believed that the Over- 
seers possessed such right of approval or disapproval, 
and of course that they derived it from the charter and 
laws. Not only has such been the uniform and unin- 
terrupted practice, but there never has been a sugges- 
tion or intimation of a doubt of such a right of appro- 
val or disapproval, till a doctrine adverse to such right 
was first broached in said report to the Corporation of 
Nov., 1856. 

With regard to removals of officers of government 
and instruction, several instances have occurred since 
the date of the charter, some of which have been of an 
important character, and the practice has been the same 
as in the case of appointments of such officers. On no 
occasion has the removal of an instructor or officer of 
government been made without the action or approval 
of the Overseers. All orders or votes, by which orders 
and hfj-laws have been made by the Corporation, have 
at all times been laid by them before the Overseers 
for their concurrence. 

Your Committee regard this practice of the Corpo- 
ration and Overseers respecting the making of ap- 
pointments of officers of instruction and government, 
also of removals, and of orders and by-laws, as in full 
accordance with the first, third, and fourth parts or 
provisions of the third clause of the charter; and in 
their judgment this practice is a strong confirmation 
of the claim of the Overseers, that they possess the 
right of approval or disapproval touching said appoint- 
ments and removals, as well as said orders and by- 
laws, and derive the same from said proviso to the 
third clause; and it goes far to prove that the Over- 



45 



seers have, by virtue of said proviso, the same right 
as to salaries, embraced in the second or remaining 
part or provision of the third clause. 

The action of the two Boards under the second 
part or provision of the third clause, which relates to 
the making of allowances to the officers of instruc- 
tion and government of the college, alone remains to 
be considered. The practice of the two Boards re- 
specting this matter is by no means so intelligible 
and satisfactory as their practice with regard to ap- 
pointments, removals, and orders and hy-laws. What 
may have been the reason why such a different course 
of things as to allowances or salaries has existed, your 
Committee are unable fully to ascertain or explain. 

With regard to the allowance made by the Corpora- 
tion, without consulting the Overseers, to the steward 
and other servants below the rank of officers of in- 
struction and government, there is no difficulty. It 
could not but be expected that the same practice would 
at all times be pursued; and such a practice has in 
fact been pursued, as to the allowances to the steward, 
and servants of the same grade or below him, as has 
existed from the beginning respecting the selection or 
employment of them. The reasons in both cases have 
been the same, and the Overseers have always acqui- 
esced in the practice. 

For the first seventy-one or seventy-two years after 
the date of the charter, it does not appear that any 
order or vote of the Corporation, by which the salary 
of any officer of instruction and government was es- 
tablished or allowed, was laid before the Overseers for 
their approval ; and no complaint on the part of the 
Overseers of the omission seems to have been made ; 



46 



and it is believed no reason is stated in the records or 
history of the college for this course of things. 

It is proper to remark, however, that, during this 
period, the college was poor and in straitened circum- 
stances (the whole annual "real revenue" of the col- 
lege, applicable to its general purposes, in 1654, being 
twelve pounds), the number of instructors and ofiicers 
was small, the allowances were necessarily very limited, 
and the means of payment were precarious. The chief 
solicitude at that time related to the procuring of the 
means to pay the small salaries of these instructors and 
officers, and the Board of Overseers would not be likely 
to trouble themselves about the orders ox votes of the 
Corporation on this subject. It would seem that the 
chief reliance was upon subscriptions and contributions. 

For a long period after the date of the charter, the 
President of the college depended for his moderate 
allowance mainly on special grants to him by the Gen- 
eral Court, and for many years, as it has been stated 
by the committee of the Corporation in their report of 
Nov. 1856, grants were made by the General Court of 
moneys to be distributed between the President and 
Fellows according to the determination of the Ove7^- 
seers of the college. Donations were also made by the 
town of Portsmouth " to be improved by the Overseers 
of the college for the advancement of good literature 
there." Other donations were probably given in like 
manner. The Overseers, thus having the chief funds at 
their disposal, frequently made appropriations of allow- 
ances to Fellows, and others, without any action of the 
Corporation upon them. In September, 1670, the Cor- 
poration voted " to speak to " the Overseers for the en- 
larging of the butler's stipend. 



47 



In January, 1673, the Overseers voted to pay to Dr. 
Leonard Hoar £100 towards his transportation to this 
country. These votes show that, for a considerable 
period, the Overseers had funds under their control, 
which they appropriated according to their own dis- 
cretion, alone, towards providing for the wants of the 
college ; especially, in support of its instructors and 
officers. The institution was poor, and it required con- 
stant exertion on the part of both Boards and of the 
friends of the college to obtain the means for supplying 
its wants. 

Under such circumstances, it often happened that one 
Board could obtain means of relief, and raise money in 
certain quarters, more successfully than the other ; and 
it was found that in many cases the college would de- 
rive the most benefit from the separate and independ- 
ent action of each Board. The Board of Overseers was, 
much of the time, composed of powerful and influential 
men, and their aid was invoked to raise money by their 
single efibrts, in which way they could accomplish much 
more than by acting in formal concert with the other 
Board. The aid of the Overseers was sought on such 
occasions in the same manner as their influential inter- 
position was solicited to take the initiative and go forward 
and try a certain professor for divers misdemeanors, 
and remove him from office, and also to deal with a 
powerful and unmanageable treasurer, who had been 
guilty of various derelictions of duty. 

It seems that the Corporation spoke to the Overseers, 
and begged them to render some aid to this officer, and 
certain aid to that ; and, without doubt, the Overseers 
spoke to the Corporation, and desired them to make a 
small allowance out of the pittance of funds in the 



48 



hands of the college treasurer, promising that they 
would furnish a certain sum to make up the balance of 
the amount required. Thus the Corporation, by speak- 
ing to the Overseers, and the Overseers, by speaking to 
the Corporation, contrived to raise the means by which 
the college officers might be rescued from starvation. 
After the two Boards had thus consulted together, and 
the Overseers had promised to furnish a specified amount, 
and the Corporation had agreed to vote a certain sum 
towards the support of one of the college officers, would 
it be expected, or considered necessary, that the Cor- 
poration should lay before the Overseers, for their ap- 
proval, a formal order or vote, by which the grant, pre- 
viously agreed upon as aforesaid, had been made ? 

In this way matters went on down to the year 1685, 
after which time, although some of the great difficulties 
and causes of irregularity had been removed, and the 
Corporation granted allowances and salaries every year, 
yet the amounts were undoubtedly small, and as the 
Corporation had not previously, for the causes aforesaid, 
and perhaps for other reasons of which we are ignorant, 
asked the approval by the Overseers of their orders or 
votes respecting salaries, they went on in their old track 
down to the year 1722, and omitted, as on all former 
occasions, to lay their action before the Overseers, who 

— not having been accustomed to have their approval 
asked, and not being aware that any considerable 
change in the state of things had occurred, and in con- 
sequence, perhaps, of other circumstances, a knowledge 
of which has not come down to the present generation 

— did not deem the matter to be of sufficient importance 
to make any complaint about it. 

In 1722 and 1723 votes of the Corporation, by which 



49 



a Hebrew Instructor was appointed, and a grant to him 
was made of a salary of eighty pounds, were passed, 
and sent to the Overseers for their concurrence, and 
were approved. About this period the question in rela- 
tion to certain salaries was raised and discussed, it being 
insisted that the Overseers had the right of approval or 
disapproval of the orders or votes of the other Board 
establishing salaries, which right was denied by the 
Corporation. 

This question was again agitated about the year 1732; 
but no recognition of the claim of the Overseers as to 
salaries was obtained from the Corporation, which Board 
continued to pass orders or votes establishing salaries 
and making allowances, which orders or votes they 
omitted to present to the Overseers for approval, till 
the seventh of September, 1761, on which day the Cor- 
poration adopted votes, by which they established for 
the then ensuing year the salaries for the ofiicers of in- 
struction and government, and for the treasurer and 
the clerk of the Overseers, and these were transmitted 
to the Overseers and laid before them at their meeting 
in the succeeding month of October. 

From this time -forward down to about the year 1811, 
a period of about fifty years, all the numerous orders 
or votes of the Corporation, estabhshing annually the 
salaries of the officers of instruction and government, 
or making special grants to them, were uniformly pre- 
sented to the Overseers for approval, and were, in every 
instance, confirmed by the Board. On the 26th of No- 
vember, 1810, the Corporation passed divers votes or 
orders, prescribing the salaries of the several officers 
of instruction and government in the college, and also 
the salary of the treasurer and that of the secretary of 



50 



the Board of Overseers, with a provision, that all such 
salaries, so established, should continue to be the salaries 
of such instructors, officers, etc., to be paid to them 
quarter-yearly, until the same should be altered by the 
Corporation, with the approbation of the Overseers. The 
orders or votes, adopted by the Corporation, as aforesaid, 
on the 26th November, 1810, were laid before the Over- 
seers, for their approval, on the sixth day of the month 
of December following. 

After the year 1810 the Corporation omitted to pre- 
sent their orders or votes, by which salaries were estab- 
lished or altered, to the Overseers for their approval, as 
they had done every year for the fifty successive pre- 
vious years. 

The Rev. John Thornton Kirkland was inaugurated 
President of Harvard College in November, 1810 ; and 
one of the first acts under his administration was the 
adoption by the Corporation of the vote aforesaid, on 
the 26th of that month, by which it was provided that 
the salaries, granted to the officers of the college the 
previous year, should thenceforth be paid to them until 
the same should be altered by said Board with the ap- 
probation of the Overseers. By reason of this vote the 
practice of prescribing and adjusting the salaries was 
changed, and thus they were made to continue for an 
indefinite period, and to remain jDermanent. When this 
was done, the Corporation omitted to lay before the 
Overseers the orders or votes by which they increased, 
changed or prescribed any of the salaries, as they had 
done every year for the preceding fifty years. Of 
course the Overseers received no information from the 
Corporation, and had no knowledge of their acts and 



51 



doings in relation to salaries or special grants to the 
officers of instruction and government of the college. 

It is true that for several years past the Treasurer's 
Annual Eeport has every year been laid before the 
Overseers, in which the amounts paid during the year 
to the officers of the college for their respective salaries 
are stated ; but the report contains no express notice 
of any particular changes which have been made of 
the salaries in the course of the financial year to which 
the re23ort relates. Such has continued to be the course 
of things, touching salaries, to the present time. 

Since the year 1810, there have been two important 
alterations by the General Court of the constitution of 
the Board of Overseers, by means of which the Board 
was made to consist of a very large proportion of new 
members. In the year 1855, the Board consisted of 
many new members under a recent new organization of 
the Board by the Legislature, and in the course of a 
discussion, at a meeting of the Overseers during that 
year, respecting the Plummer Professorship of Christian 
Morals, pointed reference was made to the subject of 
salaries. In consequence of what occurred on that 
occasion, a committee was appointed to consider the 
relative powers, duties, and responsibilities of the Presi- 
dent and Fellows, and of the Overseers of Harvard 
College, more especially in relation to salaries, etc., etc- 
This committee made their report, in January, 1856, as 
stated at the commencement of this report, in which it 
was insisted that the Overseers had the right of approval 
or disapproval of the orders or votes of the Corporation, 
by which salaries were established, by virtue of the pro- 
viso to the third clause of the charter of Harvard College. 

After said report was presented and accepted by this 



52 



Board, a committee, consisting of the same members as 
the former committee, was appointed to confer with a 
like committee on the part of the Corporation relating 
to the questions at issue between the two Boards. This 
last committee on the part of the Overseers had several 
conferences with said committee of the Corporation. 
At the first of these meetings, the committee of the 
Overseers read to the committee on the part of the 
Corporation the form of two resolutions, or joint rules, 
with the adoption of which alone, or any other, sub- 
stantially accomplishing the same object, they stated 
they should be entirely satisfied and content. 

These two joint rules, or resolutions, were as follows, 
viz : — 

1st. It shall be the duty of the President of the 
university, in a reasonable time, to lay before the Board 
of Overseers for their approval all votes or resolves of 
the Corporation, by which any bequests or donations 
for the use of the college, made for the promotion of 
specific objects and purposes, or encumbered with spe- 
cial trusts and conditions, shall by said Corporation be 
accepted. 

2d. It shall be the duty of the President, without 
any unnecessary delay, to present to the Overseers for 
their concurrence all votes or orders of the Corpora- 
tion, by which the salaries of any instructors and ofiicers 
of government in the college shall be established or 
modified, or by which any special grants shall be made 
to such instructors and officers. 

These two committees failed to come to any adjust- 
ment touching the matters in controversy, and the 
committee of the Corporation made their report to 
their Board in November, 1856, as aforesaid, and the 



53 



committee on the part of the Overseers made a report 
to their Board on the 20th of January, 1857, stating as 
concisely as possible (the chairman being then very ill) 
their endeavors to procure the adoption of said joint 
rules, with some remarks by way of explanation, and 
prayed to be discharged from the further consideration 
of the subject. The request of said committee was 
granted by the Board, and they were discharged ac- 
cordingly. 

At a meeting of the Overseers, held a short time 
subsequently, the Hon. Reuben A. Chapman, a member 
of the Board, offered the following resolve, viz : — 

Resolvedj That, in the opinion of this Board, the 
appointment of officers, fixing the salaries of officers, 
and the acceptance of all donations and bequests, which 
are accompanied by conditions or special trusts, are 
among the things which it is the duty of the Corpora- 
tion to lay before this Board for our action thereon. 

This resolve, being explained by the mover, and its 
adoption ably advocated by the Hon. E. Eockwood 
Hoar and Hon. Francis Bassett, was passed by the 
Overseers without a division. It is a source of much 
satisfaction to this Board that their rights were vindi- 
cated and supported on said occasion by two learned 
lawyers, who are now justices of the Supreme Judicial 
Court of the Commonwealth. 

Thus it appears that during this whole history in 
relation to salaries, the Corporation has for about three 
quarters of the time, since the date of the charter, 
omitted to lay their orders or votes, prescribing salaries, 
before the Overseers for approval. Of this the Over- 
seers made no complaint for the first seventy-one or 
seventy-two years, but since that period they have on 



54 



divers occasions complained of the omission, and in- 
sisted that they had the right of approval or disap- 
proval of the doings of the Corporation respecting 
salaries, secured to them by the charter. 

The right of the Overseers cannot be regarded as in 
any degree impaired by the lapse of time, during which 
such omission has been continued, especially when it 
is considered that the Overseers have not failed, on 
divers times, seriously to insist upon their claim, and 
that the President and Fellows have occasionally laid 
their orders or votes on this subject before the Over- 
seers ; and this the Corporation once did as to the 
salaries of officers of instruction and government and 
of the Treasurer every year during a period of fifty 
successive years. Although the Overseers have some- 
times, for a considerable period, submitted in silence to 
the omission of the Corporation to comply with what 
the Overseers have regarded as an express and clear 
provision of the charter, yet in no case have they ever, 
when the question has been brought forward or agi- 
tated, hesitated to claim their right by the charter of 
approval or disapproval as to the orders or votes of the 
Corporation respecting the salaries of officers of instruc- 
tion and government. 

In the report of November, 1856, of the Committee 
of the Corporation, they seem disposed to draw large 
conclusions from the silence of the Overseers on two 
or three occasions, the most important of which they 
state as follows, viz. : " The statutes and laws of the 
university underwent an entire revision by both 
Boards in the year 1848, and a code was adopted 
by their concurrence, after amendments by the Over- 
seers. This code purports to contain all the laws of 



55 



the university, including those of its general organiza- 
tion and government." The said committee say that 
" they look in vain for any article or suggestion, indi- 
cating that the action of the Corporation upon salaries 
or any financial matters is to be submitted to the 
Overseers, or be in any manner subject to their confir- 
mation or revision ; " and they add that " it is submit- 
ted with great confidence that clearer proof could not 
be exhibited, that, up to the time of the revision and 
establishment of that code, in 1848, the Overseers did 
not claim, and did not imagine that they possessed the 
power of revising and controlling the action of the Cor- 
poration ... in the establishment of salaries." 

Your Committee agree with said committee of the 
Corporation that the object of both Boards in 1848 
was to prepare a code which should contain all the 
laws of the university, including those of its general 
organization and government. The design evidently 
was to declare what should thenceforth be considered, 
not only the orders and by-laws of the university, but 
also to promulgate, in suitable, clear and convenient 
phraseology, those provisions of the charter and of the 
laws supplementary thereto, with regard to which said 
Boards are most frequently called upon to take action ; 
and, without doubt, it was intended to set forth these 
provisions in such- a form as should present the con- 
. struction that had uniformly been given to them with 
the uninterrupted acquiescence of both Boards. 

Of course, when the two Boards came to a provision 
of the charter, about the meaning or construction of 
which they could not agree, an enunciation of the 
meaning or legal effect thereof was necessarily omit- 
ted. It is very probable that the two Boards would 



56 



on this, as they had on several former occasions, dis- 
agree when they came to that part of the charter 
which relates to the establishment of salaries. 

This therefore is a good reason why no declaration 
was made on the subject of the salaries of officers of 
instruction and government, and the omission is no 
more adverse to the construction which the Overseers 
have put upon the provision in the third clause of the 
charter touching salaries, than it is to that which the 
Corporation has claimed. 

It also should be particularly remembered that the 
Corporation, having in this case, as in all others, the 
initiative, prepared this new edition and digest of 
the laws, adopted it by a formal vote, and then laid 
the same before the Overseers, who concurred therein, 
with the exception of one unimportant paragraph, 
which was indefinitely postponed. The whole of the 
existing digest and edition of the laws, published in 
1848, was the original work of the Corporation, and 
the question may well be asked why they omiitted any 
declaration as to their powers respecting salaries. Two 
reasons only can be given. One is that they knew 
they had not an exclusive power over the subject 
(which fact, however, they might not be willing to 
acknowledge). The other is that they well understood, 
if they should make a declaration, asserting such exclu- 
sive power on their part, that the Overseers would not ■ 
concur in any such declaration. 

It is difficult to conceive how the Overseers can be 
considered as prejudiced by this omission on the part of 
the Corporation. When this code was laid before the 
Overseers, they might well have said that, although 
they should have been pleased to have had the Cor- 



57 



poration insert a declaration that they had the powei 
to establish salaries, subject to the approval or disap 
proval of the Overseers, yet, as the Corporation had 
altogether omitted the subject of salaries, a non-concur- 
rence by the Overseers in the adoption of the said 
code or digest would be likely to lead to a defeat or 
loss of the whole work. Therefore the Overseers 
voted to concur. They perceived that such action on 
their part could never be regarded as an admission 
adverse to their right of approval or disapproval re- 
specting salaries, but, on the contrary, the omission 
by the Corporation to insert a declaration that they 
possessed the exclusive power as to the establishment 
or modification of salaries was a circumstance signifi- 
cant and adverse to their possessing any such power. 

Again, as the committee of the Corporation have 
undertaken to draw an inference adverse to the rights 
of the Overseers from the omission of any reference, in 
said edition of 1848 of the laws, to the subject of 
salaries, your Committee think proper to allude to cer- 
tain things that are not only not passed over in silence, 
but fully expressed therein. One matter they will refer 
to, which they deem of much significance and import- 
ance. It is contained in article twenty-eight, which is 
in these words : "All the officers of instruction and 
government in the university are chosen by the Cor- 
poration with the concurrence of the Overseers, and 
are subject to removal for inadequate performance or 
neglect of duty or misconduct." 

Here are substantially set forth in plain modern 
phraseology two of the provisions of the third clause 
in the charter, under which the Corporation make 
appointments and removals, subject to the concurrence 

8 



58 



of the Overseers. This is a simple and distinct assertion 
that the Corporation make appointments and removals 
of officers of instruction and government, and that the 
Overseers exercise the right of approval or disapproval 
thereof This is a declaration of the construction of 
said two provisions in said third clause, which the Cor- 
poration and Overseers have adopted and acted upon 
from the first moment of the charter, for a period of 
more than two hundred years. Must not a construc- 
tion, adopted and acted upon for such a length of time 
with perfect uniformity and unanimity, without the 
suggestion of a doubt, and in 1848 stated and confirmed 
in a new and authentic edition of the laws, affecting the 
college and sanctioned by both Boards, be regarded as 
the true construction, which must govern and prevail 
in all cases of future action on the part of either Board, or 
of intercourse between the Corporation and Overseers ? 
As then the Corporation must be considered as having 
made these appointments and removals of officers of 
instruction and government for this long period by 
virtue of the said third clause, and laid their orders or 
votes on the subject before the Overseers for their 
approval, and as the Overseers have during all this 
time exercised this right of approval or disapproval, 
must they not be regarded as exercising it under the 
clause of the charter by which the Corporation made 
the said appointments and removals, that is, by virtue 
of the proviso to said clause ? 

In the course of these two hundred years and up- 
wards there must have been certainly several, and 
probably many, appointments and some removals, about 
which much division of sentiment must have prevailed, 
and great and perhaps intense excitement has existed. 



59 



Is it possible, then, if there had been any doubt as to 
the right of approval or disapproval by the Overseers 
of the orders or votes by which the Corporation made 
such appointments or removals, that the Corporation 
should never in a single instance have withheld the 
order or vote by which they made an appointment or 
removal, and omitted to lay it before the Overseers ? 

Your Committee believe they may with perfect con- 
fidence say that the Overseers have never on any oc- 
casion expressly or impliedly admitted that they did 
not, by virtue of said proviso, possess the right of ap- 
proval or disapproval of the orders or votes adopted 
by the Corporation in relation to appointments, re- 
movals or salaries of officers of instruction and gov- 
ernment, unless they did so by virtue of a report, 
which a committee of that Board, appointed Nov. 20, 
1760, made in the year 1761, and which the committee 
of the Corporation, in their report of Nov. 1856, have 
dwelt upon at some length with apparent satisfaction. 

The facts respecting said matter are as follows, viz. : 
At a meeting of the Overseers, held on the 20th of 
Nov., 1760, they adopted the following vote, viz.: "Voted, 
That there be a committee to consider whether it is in 
the power of the Corporation to make allowances to 
those who are employed in the government or instruc- 
tion of the college, without the consent of the Over- 
seers," and a committee of ^vq was then appointed. 
This committee afterwards, in 1761, made a report, 
which was read, and the 9th of July, 1761, was spe- 
cially assigned for its consideration, and it was voted 
that the Corporation be served with a copy thereof 
This report was not taken up for consideration at said 
adjourned meeting in July, nor was it alluded to. It 



60 



does not appear that it was ever accepted by the 
Overseers, and no further notice was taken of it on 
their records, and no aUusion was ever made to it on 
the records of the Corporation. 

The question now is, what was the character and 
contents of said report? As it has been stated, this 
report is not set forth or recorded, in whole or in part, 
on the books of the Corporation or of the Overseers. 
The said committee of the President and Fellows in 
their report of November, 1856, have produced two 
documents, one of w^hich they say is the report afore- 
said, made to the Overseers in 1761, and the other 
they call the answ^er of the Corporation to the same. 
The paper called the report of the committee of the 
Overseers made in 1761, purports to be signed by "An- 
drew Oliver, per order," the first person named on the 
said committee appointed the 20th of November, 1760. 
In said supposed report it is stated that the committee 
had consulted the charter, and had come to the conclu- 
sion that the Corporation had no right to make allow- 
ance to persons employed in the government of the 
college without the consent of the Overseers, and that 
this right of approval as to salaries is claimed by virtue 
of the fifth clause of the charter. It is remarked also 
in said paper that " the officers intended in the third 
clause of the charter are neither the President nor Fel- 
lows, nor any concerned in the government of the col- 
lege, hut such officers as are ranked after the scholars of the 
college; the officers here intended, no doubt, are the 
steward and butler, and any other officers (if such there 
be) not concerned in the government of the college." 

It is, in fact, substantially denied in said paper that 
the Corporation has by virtue of the third clause of the 



61 



charter any autliorit j to elect officers of instruction and 
government, but only such mere ministerial agents or 
servants as aforesaid, the choice of whom, as it is alleged, 
is in the Corporation, independent of the Overseers. 

The committee of the Corporation, in their report of 
November, 1856, to that Board, repudiate the doctrine 
contained in said old paper, by which the power of the 
Corporation to elect officers of government and instruc- 
tion under the third clause is virtually denied, but they 
seem to be well satisfied with the conclusion therein 
that the Overseers have no right of approval or dis- 
approval as to appointments made by the Corporation 
under said clause. It is difficult to comprehend how 
a committee, whether able and learned, or of ordinary 
capacity, could have made such a poor and imperfect 
report, as is contained in said old document. All the 
important and essential powers of both Boards, granted 
by the provisions of the third clause, are disallowed 
and denied in the paper. 

When allusion is made in said document to the third 
clause, it is a matter of regret that its provisions were 
not set forth, especially that the proviso to the clause 
was not stated in the very words thereof, so that it 
might be certain that no error had occurred, and that 
the meaning and force of said proviso were under- 
stood. 

The question now is, w^hether said old paper, produced 
by the committee of the Corporation in their report of 
November, 1856, is the report which was actually made 
in 1761 by the committee of the Overseers, appointed 
November 20, 1760. There is no circumstance which 
satisfactorily proves its identity or authenticity. Every 
one, conversant with legislation and the files of our Sen- 



62 



ate or House of Representatives, knows that in a con- 
troverted case, especially where there has been a large 
committee, consisting of five, seven, or more members, 
they may be divided, and after a hearing, and long dis- 
cussion amongst themselves, the committee assembles to 
make a decision and take a final vote, and decide upon 
a report to be submitted to the Senate or House. On 
such an occasion the chairman thinks it important for 
him to come to the meeting prepared with a report, 
signed by him for the committee, expecting and hoping 
that his views will meet the approbation of his associ- 
ates ; in addition to which there may be one or more 
additional reports drawn up and signed by one or more 
members. 

It sometimes happens that in a question of difficulty 
and doubt, each member comes with a report, express- 
ing views peculiarly his own. This might well be the 
case where the members of a committee had undertaken 
to make up their minds respecting the meaning of the 
several clauses, or the several parts of a clause, in such 
an instrument as the college charter, and that too with- 
out the benefit of having heard an argument from 
learned counsel. 

Again, in searching amongst old files of twenty, thirty 
or fifty years previous, it frequently happens that in the 
case sought for not an original paper can be found, and 
great disappointment is not unfrequently experienced 
in finding other papers, for the most part of no conse- 
quence, but as to the important document sought for, it 
cannot be discovered. So, where there may have been 
several reports in a case, one or more may be found, but 
the real one, which was finally adopted by the commit- 
tee and presented, is missing. 



63 



When several reports are made, they may be similar 
in some particulars^ and very different in other respects. 
So here the real report may have contained no notice 
of the third clause of the charter, but may have dwelt 
on the fifth clause, while the chairman may have drawn 
up his views as expressed in the old paper produced, 
in which the third clause is particularly noticed. 

The said committee of the Corporation, in their re- 
port of November, 1856, have particularly referred to 
another old paper, produced by them, which they say 
is an answer made by the President and Eellows to the 
said supposed report to the Overseers in 1761. This 
is a paper about which more doubt, if possible, exists 
as to its authenticity than as to said paper signed by 
Andrew Oliver. It is not signed by the President, or 
any committee of the Corporation. There is no trace 
of any action on the subject of such reply either on the 
records of the Corporation or of the Overseers. 

When the question as to salaries was pending, in 
1761, and a committee of the Overseers made a report, 
some one of the Corporation, or some ambitious pro- 
fessor or tutor, may have tried his hand at making a 
reply, and presented it to the President; but the same, 
never having been adopted or sent to the Overseers, 
found its way into some recess, and is now discovered 
amongst the relics of a century ago. 

There is one thing in said supposed reply which 
deserves particular notice. It contains no reference to 
the third clause of the charter, which is somewhat en- 
larged upon in said paper purporting to be signed by 
Andrew Oliver. Now it can hardly be supposed that 
this passage in the supposed report of 1761 to the 
Overseers, which disparaged the powers conferred on 



64 



the Corporation by said clause, would have been wholly 
passed over, without some slight notice at least, in the 
reply of the President and Fellows. This circumstance 
tends to show that the said paper, signed by Andrew 
Oliver, was not the report which the writer of the 
paper, called the reply, had before him. 

For the reasons aforesaid your Committee cannot 
think that either of said two old papers are entitled to 
any consideration or confidence. It is quite certain 
that it would be very unsafe to draw any inference 
from either of them which would be prejudicial to the 
rights of the Overseers or the Corporation. 

There is one circumstance, however, which, unex- 
plained, your Committee are bound to admit has some 
significance. The paper, produced as the report of a 
committee of the Overseers, certainly expresses the 
opinion of one member of that Board, namely, that of 
Mr. Andrew Oliver, clearly opposed to the views taken 
by your Committee respecting the construction of the 
third clause of the charter, and if by possibility that 
paper is, contrary to the judgment of your Committee, 
the actual report made in 1761, then it must be con- 
fessed that it is an admission on the part of a majority 
of the committee present when the report was adopted, 
that the Overseers have not, by virtue of the proviso to 
the third clause of the charter, the right of approval or 
disapproval as to appointments, allowances, and remov- 
als, made by the Corporation. 

It is to be regretted that Mr. Oliver did not state in 
his report the proviso to the third clause in the words 
thereof in full, by which it would have appeared what 
his reading was. A learned lawyer in the summer of 
1855 remarked, in a conversation with the chairman of 



65 



your Committee, that if the words of the proviso had 
been " the said orders and by-laivs^' or some equivalent 
expression, it might have been difficult for the Over- 
seers to claim, by virtue of said proviso, a right of ap- 
proval or disapproval as to appointments, allowances 
and removals. 

This remark made a decided impression on the mind 
of the chairman of your Committee ; and when the 
paper aforesaid, signed by x\ndrew Oliver, was discov- 
ered, he felt much solicitude on the subject, and went 
immediately to Cambridge, and examined the original 
charter of Harvard College, and found that the word 
orders alone was contained in said proviso, that is, that 
no such word as laivs or hy-laws was associated with the 
word orders therein. The reading of the said proviso 
was found to be the same as that in the copy of the 
charter in the manual, which all the members of this 
Board are at the present day furnished with. 

The present secretary of the Overseers having ex- 
tensive and accurate knowledo;e with reo:ard to all 
ancient matters connected with Harvard College, and 
the colony and province of Massachusetts Bay, it was 
supposed that he might be able to give some informa- 
tion on this subject. The chairman of your Committee 
therefore inquired of him whether he had ever seen 
any manual, which bore date, or appeared to have been 
published, or in use, at any time prior to the Kevolution 
of 1776, and which contained a copy of the charter. 
To which question the secretary replied that he had 
never seen or heard of any such manual, containing a 
copy of the charter of the college. 

At a subsequent period the chairman of your Com- 
mittee called at the office of said secretary, and there 

9 



66 



spent some time in looking over several of the early 
volumes of the Overseers' records; and his attention 
was attracted to the fact that in tv^o or three instances 
meetings of the Board were called, or held by adjourn- 
ment, for the purpose of considering some question in 
relation to certain rights of the Overseers under the 
charter; and that on one or more occasions the secre- 
tary was instructed, inasmuch as the Board was not in 
possession of the charter, etc., to lay before said Board 
copies of the charter and appendix for their inspection, 
that they might be able to decide some point or matter 
pending before them. 

The question then arose in the mind of the chairman 
of your Committee whether the copies of the charter, 
which on any occasion the secretary thus laid before 
the Overseers, or furnished to any member of the Board, 
were correct copies, and whether there were any means 
of ascertaining that fact, or of learning what the secre- 
tary made or derived his copies from, — whether from 
the original charter in the custody of the President at 
the college, or from some authenticated copy thereof 
He then inquired of the secretary, who was present, 
how he supposed some one of the Overseers obtained a 
sight of the charter, or ascertained in the most con- 
venient way what the provisions of the charter might 
be touching some particular matter, or from what 
source the secretary in former years had procured a 
copy thereof for the use of the Overseers, when he had 
been instructed to lay a copy before the Board. 

" 0," said the secretary, '^ a full copy of the charter 
and of the appendix is contained in the first volume of 
the records of the Overseers, where it was entered by 
tutor Flynt, secretary of the Board, and certified by 



67 



him to be a true copy in each case. This was done 
about the year 1718. Whenever the Overseers, or any 
committee or member thereof, wished to see the char- 
ter or appendix, application was, without doubt, made 
to the secretary for an inspection thereof; and when- 
ever the Overseers had any question before them, upon 
which some provision of the charter might be sup- 
posed to have a bearing, they would direct the secre- 
tary to lay a copy before them at the next meeting, 
and of course all he would have to do would be to put 
this first duodecimo volume in his pocket, and thus 
have at the meeting the charter and appendix, that 
is, authenticated copies thereof, for the inspection of the 
Overseers ; and if some member of the Board should 
find any difiiculty in reading the hand-writing of tutor 
Flynt, who made these copies, the tutor himself, or his 
successor, who had become familiar with the writing, 
would be ready to read and explain it." 

As soon as the secretary explained in what way the 
Overseers in former days ascertained what were the 
contents of the charter, or what some particular pro- 
vision of it might be, the chairman of your Committee 
at once desired the secretary to turn to the place in 
said first volume of the records where a copy of the 
charter as well as of the appendix was to be found, and 
point out the third clause of the charter, and especially 
the proviso at the end thereof The important proviso 
was then pointed out, and behold it read as follows, viz. : 
" Provided the said Imvs and orders be allowed by the 
Overseers " Thus the perplexing mystery was revealed, 
and the great difiiculty was explained. This perfectly 
accounted for the fog that beclouded the mind of An- 
drew Oliver, who wrote the old paper aforesaid of 1761. 



68 



Your Committee have thus travelled over much 
ground in the examination of the various questions that 
arise respecting the third clause of the college charter, 
and the proviso to the same. They will now present a 
sort of recapitulation, or rather restatement, of the po- 
sitions they have endeavored to establish, and will add 
such other points and remarks as may, in their approach 
to the end of their report, occur to them. 

1st. The first great and paramount object of the 
charter was to establish a corporation, in which the 
title to all the property belonging to the college, real 
and personal, might be vested, of which property the 
Corporation should in law have the sole and absolute 
management ; and the President and Fellows at the 
beginning, and at all times since, have without doubt 
acted on the principle that they possessed an incidental 
and inherent power of using all the means requisite to 
enable them to exercise this sole management of said 
property, without being liable to be controlled or affect- 
ed by any legal right of interference or action on the 
part of the Overseers. 

2d. The third clause is that part of the charter from 
which the President and Fellows derive all their exjjress 
power to make appointments and removals of officers 
and servants of the college, also allowances to* them and 
orders and by-laws. This point is now admitted by both 
Boards, and no question can hereafter be raised on the 
subject. 

3d. The question then arises whether the Overseers 
have the right of approval of all orders or votes which 
the Corporation may pass by virtue of the provisions 
of said clause, and if they have not this right as to the 
action of the Corporation in all cases under this clause, 



69 



then the inquiry should be in what cases the Overseers 
have the right. 

The Overseers do not ask to have or exercise any 
right of approval or disapproval of the action of the 
Corporation by which the steward, or other servants 
below him, are chosen or employed, and they prefer to 
have the old practice continued, which has existed un- 
interruptedly from the beginning with regard to such in- 
ferior agents or servants as are selected or employed with 
reference to the management of the college property, 
and the material interests and business matters which 
are incidental to said propertj^, or have any relation 
thereto. The Overseers are entirely indifferent whether 
this practice is considered as having existed from the 
beginning, or as now existing, by reason of a claim on 
the part of the Corporation of an inherent and original 
power, incidental to their sole and exclusive manage- 
ment of said property ; or whether it grew out of the 
necemty of the case, and for that reason, and as a great 
relief to the Overseers, it was always cheerfully assented 
to and acquiesced in by them. 

The Overseers are also willing and desirous to have 
the practice continued, by which the Corporation have 
at all times, without asking the previous consent or sub- 
sequent approval of the ^ Overseers, determined what 
should be the compensation of the steward, and of all 
the servants below him, for their services, for the same 
reason they have chosen or employed such agents and 
servants without consulting the Overseers, or desiring 
their approval. 

4th. Whenever college appointments are mentioned 
or alluded to by some one educated at the university, 
or having any connection with it, or knowledge of its 



70 



concerns, the appointments of the officers of instruction 
and government are alone intended ; no reference what- 
ever is had on such occasions to the steward, or to the 
servants below him. 

The chief matter which the Overseers can feel any 
interest about, when appointments, salaries and removals 
are alluded to, relates to the appointments, salaries and 
removals of the officers of instruction and government, 
and the question is whether they have the right of ap- 
proval or disapproval of the orders or votes by which 
the Corporation under the third clause make such ap- 
pointments and removals, and establish salaries, as well 
as make orders and by-laws. It always has been 
and still is admitted by the President and Fellows 
that the Overseers have, by virtue of the proviso at 
the end of the third clause of the charter, the right 
of approval or disapproval of all votes by which 
the Corporation pass orders and by-laws under the 
fourth part or provision of said third clause. The 
Overseers insist that said proviso applies also to the 
other three parts or provisions of said third clause, and 
that they have the right of approval or disapproval as 
to appointments, salaries and removals of officers of in- 
struction and government, by virtue of said proviso, as 
well as they have the right, as to orders and by-laws. 
This depends on the question whether the word orders 
in said proviso means the same as votes, or whether it 
signifies the same as orders and hy-lavjs, 

5th. The word orders in the proviso to the third 
clause signifies the same as votes. This fact is perfectly 
apparent on a perusal of the records of the colonial legis- 
lature and of the whole colonial history of Massachusetts, 
and is proved by the practice in towns and corporations 



71 



in Massachusetts, and is shown by an examination of 
the writings of our statesmen, legislators and scholars, 
and also of the records of the Corporation of Harvard Col- 
lege ; and this proviso Avith the word orders, having the 
same construction and signification as ijoies, manifestly 
gives to the Overseers the right of approval or disap- 
proval of all votes by which the Corporation make 
appointments and removals, and establish salaries of 
officers of instruction and government, as well as make 
orders and by-laws. In Worcester's Dictionary, under 
the definition of the word ''vote,'' the following citation 
is made from the Hon. L. S. Cushing's Manual op Par- 
liamentary Practice, a work of high authority, viz, : 
" The judgment, opinion, sense, or will of a deliberative 
assembly is expressed, according to the nature of the 
subject, either by a resolution, order, or vote." 

6th. The construction aforesaid, put upon the pro- 
viso to the third clause of the charter, is distinctly 
admitted and confirmed so far as regards appoint- 
ments, as has been already stated, by the memorial of 
the President and Fellows to the legislature of Massa- 
chusetts in the year 1851, in which they say, "It" (the 
charter) "gave to them" (the Corporation) "the sole 
power of appointing all officers and servants of the 
college, and vested in them the exclusive right of enact- 
ing rules and laws for its government, and administering 
them, subject only to the approval or disapproval of 
such appointments, rules and laivs hy the Overseers^ This 
is a clear and conclusive declaration that the Overseers 
have the right of approval or disapproval of the ajD- 
pointments of officers and servants of the college, made 
by the Corporation under said third clause, and it 
follows with perfect certainty that the Overseers must 



have this right by virtue of the proviso to said clause, 
and if that proviso appUes to appointments, it must 
necessarily and inevitably apply to salaries and removals. 

This is further confirmed no^ only as to appointments, 
but as to removals, by the joint action of the Corporation 
and Overseers which occurred in 1848. In a collec- 
tion or new edition of the laws concerning the college, 
revised and approved by both Boards, there is set forth 
substantially, in article twenty-eight, the first and third 
provisions of the third clause of the charter, and also 
the proviso to said clause, as understood by your Com- 
mittee ; that is, the practical construction put upon the 
same by the Corporation and Overseers from the begin- 
ning, during a period of more than two hundred years, 
is declared in the following words, namely : — " All the 
officers of instruction and government in the university 
are chosen by the Corporation, with the concurrence of 
the Overseers, and are subject to removal for inadequate 
performance and neglect of dut}^ or misconduct." 

7th. It should be constantly recollected that the im- 
portant admissions and declarations aforesaid of the 
Corporation that the Overseers possess the right of 
approval or disapproval as to appointments as in the 
said memorial of 1851, and as to appointments and re- 
movals of officers of instruction and government as in 
the code or edition of 1848 of the laws, were made on 
occasions favorable for accuracy of statement, and such 
admissions and declarations, made under such circum- 
stances, have much more weight than an assertion of 
a claim by the Corporation, or by a committee of that 
Board, made in 1856, in the heat of a controversy, 
when a question was pending concerning such claim 
between the two Boards. It should also be remem- 



73 



bered that four of the persons, who were members of 
the Corporation in 1848, when the said new edition and 
digest of the laws was prepared and adopted bj that 
body, were members in 1851, when said memorial was 
presented to the House of Representatives, and were 
also members when said report of November 1856 was 
presented to and accepted by said Board, of which Board 
said four constituted a majority. 

8th. Again, if the Overseers have the right of ap- 
proval or disapproval as to appointments, as it is admit- 
ted by the Corporation in their said memorial of 1851, 
and if they have the same right as to appointments and 
removals as it is admitted and declared by the Corpora- 
tion and Overseers in the edition of 1848 of the laws 
respecting the college, where would be the most obvious 
and natural place for the recognition of such a right of 
approval or disapproval ? Would it not be where this 
proviso is ? There is the appropriate, and in fact the 
necessary place for it, and it mmt be there, unless the 
language of this proviso forbids it. 

Here is a proviso, at the end of the third clause, in 
which some right of approval or disapproval is given to 
the Overseers, and it always has been, and is now admit- 
ted by the Corporation that this proviso is applicable to 
one at least of the four parts or provisions of the third 
clause of the charter; and the reasons why it should be 
considered as applicable to each of the other three parts 
or provisions, are stronger and more exacting than any 
reason can be given for the applicability of said proviso 
to the last part or provision of said clause. The appli- 
cability of said proviso to all the four parts or provisions 
of said clause depends upon the meaning of the im- 
portant word orders contained in said proviso. In order 

10 



74 



to confine the application to the fourth part or provision 
only of said third clause, this word orders must be made 
to signify the same as rules and regulations, or laws or 
by-laws, or orders and by-laws. The reasons are so 
strong however against the adoption of this significa- 
tion of the word orders, and of a consequent narrow, 
partial, and wholly imperfect application and use of said 
proviso, that this word surely ought not to be so inter- 
preted, provided it is capable of any other meaning. 

Your Committee have demonstrated, as they believe, 
that this word, when standing alone, does not signify 
rules and regulations, or laws or by-laws, or orders and 
by-laws, but always, or almost always, it means the 
same as votes. Why then should not this be promptly 
and at once adopted as the true meaning of the word, 
by means whereof this important proviso is made ap- 
plicable to all said parts or provisions of said third 
clause, including the first three as well as the fourth ? 
When this question is placed in the scale of reason, 
common sense and clear evidence, the construction 
given to this word as bearing a meaning very similar 
to, or identical with, that of votes, preponderates with 
decisive and unremitting energy. 

9th. When a professorship, or other new office in the 
college, is established, the matter is always submitted to 
the Overseers, and their concurrence is asked by the 
Corporation. On all such occasions, the question as to 
what shall be the salary of the incumbent of such new 
office of instruction or government, is an important ele- 
ment in the consideration of the Overseers. This also 
is the case at all times when appointments are made or 
approved. Appointments and salaries have important 
mutual relations. Action can hardly be taken by the 



75 



Overseers in relation to an appointment without refer- 
ence to the salary of the appointee. If the Corpora- 
tion in their order or vote, establishing a professorship 
or assistant professorship, prescribe the salary of the 
professor, and lay their doings before the Overseers, and 
the same are approved, the Corporation are under pe- 
culiar obligations, in addition to those imposed by the 
requirements of the charter, if they shall afterwards 
increase or change said salary, to ask the consent and 
approval of the Overseers. It is a violation of the un- 
derstanding and substantial agreement between the 
two Boards, if the Corporation presume to increase, or 
otherwise change, the salary of an incumbent of such a 
new professorship, which salary was an important and 
essential part of the transaction when such professorship 
was established. 

10th. Whether salaries should be established for an 
indefinite term, or for the specific term of one year 
only, will be a subject for the special consideration of 
the Corporation. As they have the initiative, they will 
of course have the matter under their entire control in 
this respect, and will adopt orders or votes, by which 
the salaries of the college officers and instructors shall 
be established for an indefinite period, or for the definite 
term of the then ensuing financial year. 

11th. With regard to any apprehension on the part 
of the Corporation that the exercise by the Overseers 
of the right of approval or disapproval as to salaries 
might be a source of evil, or annoyance, your Commit- 
tee are very confident that there is not the slightest 
ground for any such fear or anxiety. Every one, who 
has been for a considerable period an Overseer, well 
knows that it rarely happens there is a single member 



76 



of the Board, who has not reasons for desiring the good 
will and favorable regard of the President of Harvard 
University. The Overseers must at all times under- 
stand and feel th^t the Corporation have the best means 
of knowing what the salaries of the officers of instruc- 
tion and government ought to be, and they will always 
be disposed to approve the action of the Corporation 
touching salaries, unless on examining a particular case 
they shall be well satisfied that the doings of the Cor- 
poration are clearly wrong and ought to be corrected. 
The prevailing disposition of this Board will be to ap- 
prove the votes of the Corporation respecting salaries, 
unless they receive an intimation from some member of 
the Corporation, or other person connected with the col- 
lege, who is known to be desirous of promoting its best 
interests, that a special examination of one or more 
certain salaries should be made ; and if any one of the 
Overseers should happen to be somewhat pragmatical, 
and should on some occasion object without good reason 
to the amount of a particular salary, the President and 
treasurer, being members of the Corporation, and ex- 
officio members of the Board of Overseers, will be 
present, and by their statements and explanations will 
very easily prevent any objectionable action on the 
part of this Board. 

When the Corporation have on their minds the fact, 
that their doings are to be submitted to, and passed 
upon, by another Board, they will do their best to 
adjust the salaries in a reasonable, impartial and proper 
manner, so as to avoid all danger of a disapproval by 
such other Board of their order or vote, by which any 
salary may be established or modified. The best evi- 
dence as to this matter may be found in the history 



77 



of the adjustment of salaries by the Corporation every 
year from 1761 to 1811. The Corporation took such 
!^ood care to guard against partiality and favoritism, 
and in so judicious a manner to ^x and regulate every 
year the salaries of the officers of instruction and gov- 
ernment and of the treasurer, that not a word of objec- 
tion or dissent was heard from the Overseers in a single 
instance, for these fifty successive years, which elapsed 
during a part of the administration of President Hol- 
yoke, the whole of the period during which Presidents 
Locke, Langdon, Willarg, and Webber were in office, and 
the early part of the presidency of Dr. Kirkland. 

12th. It is of great importance to the President and 
Fellows, and also to the college, that they should at all 
times comply with the provisions of the charter. Is it 
not their duty and a matter of high expediency to 
refrain from any action which may be considered as a 
disregard of the just rights of the Overseers ? Would 
it not be much better for the Corporation to abstain 
from exercisino; their own full rio-hts than to exceed 
their powers in a single instance, and if a question 
arises whether they should lay their orders or votes 
before the Overseers touching a certain subject for ap- 
proval, will it not be the wisest course for them to act 
in accordance with the wishes of the lower Board, when 
a contrary action would be attended with much doubt, 
and the adoption of the course desired by the Overseers 
can never be a source of any injury or danger to the 
college, or a matter of any annoyance or inconvenience 
to the Corporation, but manifestly may be beneficial to 
the university and satisfactory to the great body of its 
able and judicious friends ? 

Again, if at any time a radical movement against the 



78 



Corporation should be conceived, the projectors will 
never fail to avail themselves of some violation or disre- 
gard of the charter by that body as their chief ground 
of assault, if such a violation or disregard has actually 
occurred, and is known to such projectors, or if a case 
of such violation can be made out with a tolerable show 
of argument. If in 1851 the circumstance of the omis- 
sion by the Corporation for several previous years to lay 
their orders or votes respecting salaries before the Over- 
seers for approval had been known, and fully under- 
stood, as it has been since, the 1|^11 then introduced for 
remodelling the Corporation might have passed. It 
should always be remembered that the Board of Over- 
seers consists of the Governor and Lt. Governor of the 
State, the President of the Senate, the Speaker of the 
House, and the Secretary of the Board of Education, 
and thirty other gentlemen, chosen hy the legislature, and a 
part of them are chosen every year. 

It is believed that there are not now, and there have 
not been for a long time, any real matters of disagree- 
ment between the two Boards, except such as relate to 
salaries, and to bequests or donations, made for the pro- 
motion of specific objects and purposes, or accompanied 
with special trusts and conditions. Let the Corporation, 
then, hereafter lay all their orders or votes before the 
Overseers for their concurrence, by which salaries of 
officers of instruction and government shall be estab- 
lished or modified, or special allowances shall be made 
to them, or by which the bequests or donations above 
specified shall by said Corporation be accepted. By this 
course the President and Fellows will guard their body 
and the university against assault or danger, will give 
entire satisfaction to the Overseers, remove all grounds 



79 

of complaint, do much good to the college, and in no 
way subject themselves to any inconvenience or an- 
noyance. 

The result will be that perfect harmony and mu- 
tual confidence will exist between the two Boards, and 
their united power will be sure to be available in the 
most effective way to oppose and resist all assaults on 
the college, or on either of said Boards, from whatever 
quarter they may come. 

13th. The attention of your Committee has just been 
called to the following important passage in Mr. Quincy's 
History of the university, viz. : — 

"On the 4th of January, 1821" (in the convention 
for revising the constitution of Massachusetts), " the 
Hon. Daniel Webster as chairman of a committee made 
a report to the convention, in which, after a short re- 
capitulation of important points in the history of the 
college, they declare their opinion concerning the ex- 
isting constitution of that seminary, — that it is a well- 
contrived and useful form of government. The Corpo- 
ration consists of but few persons; they can, therefore, 
assemble frequently and with facility, for the transaction 
of business, either regular or occasional. The Board of 
Overseers, having a negative on the more important acts 
OF the Corporation, is a large and popular body, a great 
majority of its members being such as are annually 
elected to places in the highest trust in the govern- 
ment by the people themselves. A more effectual con- 
trol OVER the proceedings OF THE CORPORATION CANNOT BE 

DESIRED. Indeed, if a new government were now to be 
framed for a university, independent of all considera- 
tions of existing rights and privileges, the committee do 
not know that a better system could probably be de- 
vised." 



80 



This committee consisted of the Hon. Daniel Webster, 
Hon. Samuel S. Wilde, Hon. Samuel Dana, Hon. H. A. S. 
Dearborn, and Allen Tillinghast, Esq. In their report, 
made to the constitutional convention of 1820, it is de- 
clared that "the Overseers have a negative on the more 
IMPORTANT ACTS of the Corporation," and that " a more 
effectual control over the proceedings of the Corpora- 
tion CANNOT BE DESIRED." Now the appointing of officers 
of instruction and government in the college, the estab- 
lishing of their salaries, and the removal of such func- 
tionaries from office by the Corporation in pursuance of 
. the provisions of the third clause of the charter, must 
certainly be considered as amongst " the more important 
ACTS OF THE CORPORATION." They are in fact acts of the 
very highest importance. 

This opinion, declared concerning the charter and 
constitution of the college by two such learned and dis- 
criminating lawyers as Mr. Webster and Mr. Justice 
Wilde, in concurrence with other able and distinguished 
men on the committee, is entitled to the highest possible 
respect and confidence, and must be regarded as decisive 
in relation to the questions considered in this report, and 
as settling the same in accordance with the judgment 
and conclusions expressed by your Committee. 

The chairman of your Committee having adopted the 
opinion of the late Hon. Samuel Hoar, his associate on 
a former committee, that the full and entire right of 
approval or disapproval as to appointments, salaries, 
removals and orders and by-laws, was secured to the 
Board of Overseers by the proviso to the third clause, 
and that there was no necessity whatever of resorting 
to any other part of the charter, or to the appendix, 
for such right, expressed to his colleagues on the com- 



81 



mittee at an early day liis desire to rest on that proviso 
alone. The chairman assigned as reasons for this 
course, j'^r^^, because that proviso gave to the Overseers 
full power in the premises, and, secondly^ because of the 
understanding he had with Mr. Hoar not to have 
recourse to the appendix of the college charter, and 
he did not, after the decease of his excellent friend, 
feel at liberty to pursue a different course from that 
which he adopted in concert with him in his lifetime. 

The other two members of the Committee, while con- 
curring with the chairman in the opinion that the pro- 
viso to the third clause is ample for the purpose of con- 
ferring on the Overseers the right of approval or disap- 
proval as aforesaid, reserve to themselves the right to 
insist, if they think proper, in any discussion that may 
be had, that the same right of approval or disapproval 
or revision by the Overseers is conferred or confirmed 
by the fifth clause of the charter or by the second clause 
of the appendix. 

Your Committee will now proceed to state that by 
virtue of the instructions of the Board, contained in the 
order by which they were appointed, they have pro- 
cured an accurate and perfect copy of the original char- 
ter of Harvard College, which copy, hereto annexed, they 
present to the Overseers, and they have compared the 
same with what purports to be a copy of said charter, 
which is entered in the first volume of the " separate 
records" of the Overseers, and certified to be a true 
copy by Henry Flynt, secretary; and the Committee 
fiind an important discrepancy between said true copy 
of the original, just procured as aforesaid, and said 
copy contained in the records of the Overseers, viz., the 
insertion of the two words " laws and " in said copy con- 
11 



82 



tained in the Overseers' records, which are not found in 
the original charter. 

These two words are inserted in the proviso to the 
third clause of the charter, by means of wliich this pro- 
viso in said copy contained in the Overseers' records 
reads as follows, viz. : " provided the said laivs and orders 
be allowed by the Overseers," instead of being in the 
words of the original charter, viz. : " provided the said 
ORDERS be alloived by the Overseers." 

Your Committee have extended their report very far 
beyond the limits they at first expected or intended. 
They are aware that they may be charged with pro- 
lixity and repetition. But they have preferred to be 
too long rather than too short, to use more words than 
were necessary rather than too few, and they have 
chosen to indulge in repetition rather than to incur 
any danger of having some statement fail of being 
fully understood at the moment by reason of the read- 
er's not finding with facility, what had been stated in 
some former part of the report. Your Committee have 
not studied order. They have stated facts and sug- 
gestions as they occurred to them, and have not under- 
taken afterwards to reduce the same to a more orderly 
arrangement. Such as it is, they present their report 
to the Board, with the hope that it will enable them to 
understand and determine the true meaning and con- 
struction of an important portion of the college charter. 
Your Committee conclude with recommending the adop- 
tion of the subjoined order. 

All w^hich is respectfully submitted. 

GEORGE MOREY, 
J. G. ABBOTT, 

J. M. MANNING. 



APPENDIX. 



Acts and doings of the ** Governors of Harvard College " prior to the 
date of the charter of 1660, and of '■'■the Corporation " afterwards^ 

viz. : — 

" At the meeting of the Grovernors of Harvard College held in the 
college-haU this 27th of 10th, 1643." 

"It is ordered that — 

"1. The accounts of Mr. Harvard's gift are to be finished, and Mr. 
Pelham, Mr. Nowell, Mr. Hibbins, Mr. Syms, Mr. Wilson, are chosen 
to finish it, &c. &c. 

"2. Mr. Pelham is elected Treasurer of the college by the joint vote 
of the Grovernors of the college." 

" It is ordered that two Bachelors shall be chosen for the help of 
the President to read to the Junior pupils, as the President shall see 
fit, and be allowed out of the college Treasury 4£ per annum to 
each of them for their pains." 

June 17, 1667. 
Ordered by the -Corporation, that the Bachelors shall have the fore- 
noon on the commencement day for the performance of their work, and 
that for the fature it shall be looked upon as their due ordinarily, 
except there do appear to the President and Fellows any just reason, 
moving them to order it otherwise. 

October 4, 1669. 

Ordered by the Corporation, that Mr. Thomas Danforth be desired, 
and upon his consent engaged, to pay unto the Fellows the money due 
by Charlestown Ferry, &c. 

It is also ordered that three pounds be allowed by the steward to 
Groodman Taylor towards the discharge of the charges of his son's 
commencement; and that this money be repaid, either by the money 
coming from the eastward (if it be allowable), or to be allowed out 



84 



of Mr. Webb's gift, abating fifteen shillings apiece, from the money 
aforesaid, distributed among four persons. 

It is further Ordered that the revenues of Mr. Webb's gift be dis- 
tributed for the following year as it was the last year, viz. : that there 
be allowed to Sir Shephard four pounds ; to Higginson three pounds ; 
to Corlett three pounds; to Adams three pounds, and this money is 
to be allowed to them by the steward, unless some part thereof be 
abated, as is provided in the foregoing order. 

Item — It is ordered that Sewall be made a scholar of the House ; 
and succeed Sir Epes (provided that he leave the college in the win- 
ter) in his scholarship. 

February 12, 1671. 

Ordered by the Corporation that Sir Thatcher and Alcocke continue 
scholars of the House ; and that Pyke and Allen be substituted in the 
other two vacant places. 

Item — That the three pounds of Mr. Webb's gift, allowed to Sir Cor- 
lett for the year current, be given to Hawley, and that only one quarter's 
pay be allowed to Sir Corlett by reason of his discontinuance. 

At a Corporation Meeting, May 27, 1673. 

Mr. Thomas Graves being spoken with concerning his coming to be 
employed as fellow of the college, freely declared to the Corporation that 
he (upon consideration of the passed) was not free to accept any such 
employment. 

Ordered, That Na. Grookin be declared successor unto Jere. Shephard, 
for the enjoying four pounds per annum of Mr. Webb's gift from the time 
of Mr. Shephard's leaving it, and during the pleasure of the Corporation. 

March 1, 1674. 

Ordered by the Corporation that Sir Sewall be from henceforth the 
keeper of the college Library. 

April 15, 1674. 
Ordered, That Mr. Gookin and Su* Sewall, fellows of the college, 
have half a year's salary of their proportion paid them of the Piscataway 
gift, now in the Treasurer's hands, according as the Honorable Over- 
seers have directed the same to be proportioned. 

At a Meeting of the Corporation, January 1, 1675. 
Ordered, That Minot, Allen, Cheever, Danforth be scholars of the 



85 



House for the year ensuing; and that Allen receive five pounds due 
of the scholarship and to be presently paid. 

At a Meeting of the Corporation at Cambridge, Sept. 2, 1675. 
Ordered by the Corporation, That Thomas Cheever shall be monitor. 

December 22, 1675. 
Ordered hy the Corporation, That Wadsworth be scholar of the 
House. 

March 22, 1682-3. 

Ordered, That Eliot, Whiting, Mills, Phillips shall have each of them 
for the next year 5 pounds given to them out of the college revenue. 
This vote to begin from the 26th of this instant March. 

December 5, 1683. 

Voted, That Walton be chosen Butler. 

Ordered, That the scholars of the house for the year ensuing shall 
be Sir Mitchell, Sir Danforth, Dennison, Saltonstall, Dudley and Cotton. 

Ordered, That upon consideration of the great pains, which the present 
fellows resident in the college, viz. Mr. Andrew and Mr. Cotton, have 
taken, their allowances for the year past, beginning at the commencement, 
1682, shall be 45 pounds in money to each of them, and that what the 
income frpm the Ferry at Charlestown and Mr. Grlover's gift does come 
short of this sum, shall be made up out of the money received in 
England by the Hon. Treasurer of the college, Major Richards. 

At a Meeting op the Corporation in Cambridge, March 17, 1683-4. 

Voted, That Eliot, Whiting, Mills and Philips shall have each of them 
five pounds in money given to them. 

This VOTE to begin from the 26th of March, 1684. 

April 20, 1691. 

It is ordered, That the resident Fellows, viz. Mr. John Leverett and 
Mr. William Brattle, be allowed as their salary for this present year, 
five and twenty pounds each, besides what they have received, and what 
they are yet to receive from Charlestown Ferry. 

At a Corporation Meeting at Harvard College, Aug. 6, 1694. 
Ordered, 1st, That Sir Flint, Willard, Smith, Moody and Willard, 
Junior, be scholars of the House for this present year. 



86 



2d. That Mr. Pemberton be library keeper this year, and his allowance 
five pounds. 

3d. That the salary of the resident Fellows be for the present year 
50 pounds between them, to be paid by the Treasurer, besides what 
they shall receive from Charlestown Ferry. 

March 4, 1694-5. 

Ordered, That the Treasurer pay unto the Rev. President or his 
order, what was ordered unto him of the interest money due from Mr. 
Edward Pelham anno 1686. 



THE CHARTER OF HARVARD COLLEGE. 



WHEREAS THROUGH THE good hand of God 
many well deuoled persons liaue beene and dayly 
are mooued and stirred vp to giue and bestowe sundry 
guiftes legacies land^ and Revennewes for the aduance- 
ment of all good literature artes and Sciences in 
Haruard Colledge in Cambridge in the County of Mid- 
dlesex and to the maintenance of the Praesident and 
ffellowes and for all accommodacons of Building^ and 
all other necessary prouisions that may conduce to the 
education of the English & Indian Youth of this Coun- 
try in knowledge and godlines. IT IS therefore ordered 
and enacted by this Court and the aucthority thereof 
That for the furthering of so good a worke and for the 
purposes aforesaid from henceforth that the said Col- 
ledge in Cambridge in Middlesex in New England shalbe 
a Corporation Consisting of seauen persons (to wit) a 
President f&ue ffellowes and a Treasurer or Burser 
and that Henry Dunster shall be the first President 
Samuell Mather Samuell Danford maisters of Arte 
Jonathan Michell Comfort Starre and Samuell Eaton 
Batchelers of Arte shall be the fine ffellowes and 
Thomas Danford to be present Treasurer, all of them 
being Inhabitant^ in the Bay, and shall be the first 
seuen persons of which the said Corporation shall con- 
sist And that the said seuen persons or the greater 
number of them procuring the presence of the Ouer- 



88 



seers of of the Colledge and by their counsell and 
consent shall haue power and are heereby authorised 
at any tyme or tymes to elect a new President iFel- 
lowes or Treasurer so oft and from tyme to tyme as 
any of the said person or persons shall dye or be re- 
moued. Which said President and fFellowes for the tyme 
being shall for euer heereafter in name and fact be one 
body politique and Corporate in Lawe to all intent^ 
and purposes, and shall haue perpetuall succession And 
shall be called by the name of President and ffellowes of 
Haruard Colledge And shall from tyme to tyme be 
eligible as afforesaid And by that name they and their 
successors shall and may purchase and acquire to 
themselues or take and receaue vppon ffree guift and 
donation any Land^ Tenement^ or Hereditament^ 
within this Jurisdiccon of the Massatusett^ not ex- 
ceeding the value of fliue hundred pound^ per annum 
and any good^ and sommes of money whatsoeuer to 
the vse and behoofe of the said President fFellowes and 
Schollers of the said Colledge and also may sue and 
plead or be sued and impleaded by the name aforesaid 
in all Courtes and places of Judicature within the 
Jurisdiccon aforesaid and that the said President with 
any three of the fFellowes shall haue power and are 
heereby Aucthorized when they shall thinck fitt to 
make and appoint a Common Scale for the vse of the 
said Corporation. And the President & ffellowes or 
the maior part of them from tyme to tyme may meete 
and choose such Officers & Servant^ for the Colledge 
and make such allowance to them and them alsoe 
to remoue and after death or remoueall to choose such 
others and to make from tyme to tyme such orders 
& Bylawes for the better ordering & carying on 



89 



the worke of the Colledo^e as thev shall thinck fitt, 
Proiiided the said orders be allowed by the Ouerseers. 
And also that the President and fFellowes or maior 
parte of them with the Treasurer shall haue power to 
make conclusiue bargaines for Landes & Tenement^ to 
be purchased by the said Corporation for valuable con- 
sideraco. AND for the better ordering of the Gouer- 
ment of the said Colledge and Corporation Be it 
Enacted by the Aucthoritie aforesaid That the Presi- 
dent and three more of the ffellowes shall and may 
from tyme to tyme vppon due warnige or notice giuen 
by the President to the rest holde a meeting for the 
debating and concluding of affaires concerning the 
proffitt^ and Keuennues of any Landes, and disposing 
of their Good^ Prouided that all the said disposing" 
be according to the will of the Donors. And for di- 
rection in all emergent occasions execution of all 
orders and Bylawes and for the procuring of a Generall 
meetin<>: of all the Ouerseers & societie in orreat & 
difficult cases, and in cases of nonagreement, In all 
which cases aforesaid the conclusion shall be made by 
the maior parte y^ said President hauing a casting voice 
the Overseers consenting therevnto, And that all the 
aforesaid transaccons shall tend to & for the vse and 
behoofe of the President ffellowes SchoUers & Officers 
of the said Colledge and for all accomodacons of build- 
ing^ bookes and all other necessary prouisions & furni- 
tures as may be for the aduancement & education of 
youth in all manner of good literatfire Artes and 
Sciences. AND further be it ordered by this Court and 
the Aucthority thereof That all the Landes Tenement^ 
or hereditament" howses or Revennues within this 
Jurisdiccon. to the aforesaid President or Colledge ap- 

12 



90 



pertayning not exceeding the value of fine hundred 
pound^ per annum shall from henceforth be freed from 
all ciuill impositions taxes & rates all good^ to the 
said corporation or to any SchoUers thereof appertayn- 
ing shall be exempt from all manner of tolle Customes 
& excise whatsoeuer. And that the said President ifel- 
lowes & SchoUers together with the servant^ & other 
necessarie Officers to the said President or College ap- 
pertayning not exceeding tenne, viz three to the Pres- 
ident and seuen to the Colledge belonging shall be 
exempted from all personall ciuill offices militarie 
exercises or seruices watchino;^ and wardino:^ and such 
of their estates not exceeding one hundred poundes a 
man shall be free from all Country taxes or rates what- 
soeuer and none others. IN WITNES whereof The 
Court hath caused the Scale of the Colonic to be heere- 
vnto affixed. Dated the One & thirtieth day of the 
Third moneth called May, Anno 1650. 




91 



In Boakd of Overseers of Harvard College, 

Februai-y 20, 1862. 
Ordered, That the secretary of the Overseers be instructed and di- 
rected to cause the correct and perfect copy of the charter of Harvard 
College, this day laid before this Board by their committee, to be in- 
serted in the records of the Overseers ; and that said secretary be also 
instructed to make in the margin of the page in the present record 
of what purports to be a copy of the charter in the first volume of 
the Overseers' records, a reference to the volume and page where said 
correct and perfect copy of the charter shall be inserted; and said 
committee are charged with the duty of seeing that the requirements 
of this order are fully complied with. 



I 



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s:y. ■■:■ -^M^ 



LIBRARY OF CONGRESS 



029 908 994 



